Re-Considering Attraction in Sexual Harassment
80 Pages Posted: 7 Feb 2004
This Article rejects the modern feminist criticism of sexual harassment law and defends the current judicial paradigm. The modern feminist paradigm argues that sexual harassment results from gender-based power dynamics; the current judicial paradigm suggests that sexual harassment may be the product of sexual attraction. Early feminists relied on the attraction-based paradigm to solve the practical problem of demonstrating causation - i.e., that sexual harassment occurred "because of" sex, as required by anti-discrimination laws. However, in the wake of judicial acceptance of this approach, a "second wave" of scholarship has assailed its premises and results. Indeed, these attacks have been so numerous, so intense, and so persuasive that the attraction-based paradigm has fallen from favor and is now viewed by most academics as completely discredited.
This Article seeks to re-habilitate a theory of causation based on sexual attraction, which I call "attraction theory." This Article will, for the first time, provide a comprehensive analytical look at this theory, which provides an efficient, streamlined model of proof for many sexual harassment plaintiffs. In so doing, this Article narrows some of the gaps that second wave feminists argue exist in attraction theory (including a gap that exists for bisexual harassers), and urges the courts to expand their use of presumptions regarding harassers' sexual orientation. This Article also addresses the normative criticisms of attraction theory, including charges that the theory relies on archaic notions of sexual harassment as being about attraction rather than power, and that attraction theory fails to provide a compelling conceptual justification for proscribing sexual harassment, concluding that none of these concerns justify scrapping attraction theory. Finally, this Article questions the efficacy of some of the power-based theories of causation proposed by second wave feminists, arguing that reliance on these theories, to the exclusion of attraction theory, will likely result in many victims being denied a remedy.
Keywords: Sexual Harassment, Discrimination, Sex Discrimination
JEL Classification: J7, J70, J71, J78
Suggested Citation: Suggested Citation