This article proposes a paradigm that draws from the common-law rule of negligence. It defines actionable sexual conduct in the workplace in terms of the cost of precautionary conduct and the increased safety such precaution would have yielded. Like the rule of negligence, the proposed paradigm creates incentives for men and women to take steps to prevent sexual conduct loss to the point at which the cost of an additional increment of precaution is equal to the value of the reduction in risk of loss. This point is the optimal level of precaution. After this point, additional precaution might further reduce sexual conduct loss, but the cost of such precaution would outweigh the resulting benefit.
Marie T. Reilly, A Paradigm for Sexual Harassment: Toward the Optimal Level of Loss, 47 Vand. L. Rev. 427 (1994).