Form and (Dys)Function in Sexual Harassment Law: Biology, Culture, and the Spandrels of Title VII
Emory University School of Law
Arizona State Law Journal, Vol. 37, p. 321, 2005
Emory Public Law Research Paper No. 05-25
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.
Number of Pages in PDF File: 114
Keywords: Sexual Harassment, Discrimination, Title VII, Evolutionary Biology
JEL Classification: J70, J71, J78, J79
Date posted: July 21, 2005
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