Form and (dys)function in Sexual Harassment Law: Biology, Culture, and the Spandrels of Title Vii

The question of sex difference has long divided feminists, social scientists, policymakers, and legal academics. Most recently, the issue has resurfaced as prominent legal scholars have relied on evolutionary arguments to suggest that men and women might be different in ways that are relevant to sex discrimination law in general and to sexual harassment law in particular. At the same time, the question of causation under Title VII, which requires that discrimination be “because of” a plaintiff’s sex in order to be actionable, has assumed central importance in sexual harassment doctrine. This article proposes that the very evolutionary theories advanced by critics of Title VII sex discrimination doctrine in fact support the view that the typical behavior patterns seen in sexual harassment cases occur “because of” the plaintiff’s sex. Furthermore, this article argues that, under current Supreme Court jurisprudence setting out the contours of employer liability for harassing behavior by employees, employers should be liable for harassment that results where the employer allows, fosters, or fails to correct workplace conditions that are likely to give rise to the typical harassment behaviors analyzed herein. Though often perceived as being in conflict, biological explanations of many human behaviors and feminist conceptions of the causes and harms of workplace sexual harassment share much common ground. This article seeks to explore that common ground and, in so doing, to offer constructive solutions to specific doctrinal and societal problems. † Assistant Professor, Emory University School of Law. J.D. Harvard Law School. I am grateful to many people who offered their time and their thoughts in connection with previous drafts of this article. In particular, I wish to thank Howard Abrams, Martha Fineman, Rich Freer, Bill Mayton, Patricia Adair Gowaty, Marc Miller, Michael Perry, Jennifer Romig, Paul Rubin, Ani Satz, Charlie Shanor, Sara Stadler, and participants at the Emory Law School faculty workshop at which I presented an earlier version of this article. I also wish to thank participants at the 7th Annual SEAL Conference for most thoughtful and helpful questions and comments. Owen Jones was especially generous with his time, expertise, and wisdom. Finally, Kingsley Browne provided insightful and incisive comments and made me thankful to be part of an intellectual community in which disagreement coexists with discussion. It should go without saying that my mention of their names in no way implies that any of these individuals endorses the views set out in this article. Finally, I am grateful for the wonderful research assistance provided by Sarah Kemmerer, Bethany Kohl, and Jordan Reifler. 322 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.