Sturm College of Law
Attraction theory, Discriminatory causation, Sexual harrassment, Workplace sexuality
This Article will proceed in four parts. Part I explains the significance of the attraction-based view to the law of sexual harassment. This Part demonstrates not only how the attraction-based view provides a theoretical basis for treating workplace sexual conduct as a form of sex discrimination, but also how this view works in practice to provide relief for victims of workplace sexual conduct in a streamlined and effective manner. This Part articulates in a comprehensive manner how an attraction-based paradigm can be used to construct a theory by which plaintiffs can show that workplace sexual conduct has occurred "because of' sex ("discriminatory causation" or "causation"), as required by most anti-discrimination laws." It calls the method of proving discriminatory causation "attraction theory." This Part also explains the powerful influence attraction theory has exerted on the development of sexual harassment law. Part II explores the limits of attraction theory. First, this Part explains the essential criticisms offered by power-based theorists. In particular, despite its potential usefulness in many cases, power-based theorists have argued that attraction theory will not work to prove causation (1) in cases involving bisexual harassers (the "bisexuality gap"); and (2) in cases where sexual conduct is motivated not by sexual attraction, but rather by something else, such as animosity or a desire to humiliate or exclude the victim (the "nonattraction gap"). This Part then explores a practical gap that may result in attraction theory from difficulties in proving attraction and sexual orientation (the conditions necessary for the use of attraction theory). This Part argues that even though these theoretical and practical coverage gaps are real, they are not as large as modem scholars have tended to suppose. Moreover, the practical gap from difficulties in proof could be largely eliminated through the use of a presumption regarding sexual orientation in all attraction-based cases, as opposed to the presumption currently applied by the courts, which only applies to opposite-sex cases. In any event, this Part concludes, none of these gaps are so large as to render attraction theory useless or to justify the abandonment of the theory altogether. Part III examines the normative criticisms that might be leveled at attraction theory. It will conclude that, while attraction theory does pose some normative problems, few of these are insurmountable-and none would appear to justify leaving certain plaintiffs in sexual harassment cases without a remedy, which is what will likely occur if we forego the use of attraction theory. Part IV turns to the power-based theories, concluding that they are riddled with practical limitations and are actually inferior to attraction theory as a vehicle for providing relief. In particular, this Part explains that there are likely to be a set of cases in which attraction theory will work to prove causation but in which a power-based theory will be difficult or will not work. In these cases foregoing the use of attraction theory, as many of the second-generation feminists seem to urge, could easily result in leaving plaintiffs without a remedy.
Originally published as Martin J. Katz, Reconsidering Attraction in Sexual Harassment, 79 IND. L. J. 101 (2004).
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Martin J. Katz, Reconsidering Attraction in Sexual Harassment, 79 IND. L. J. 101 (2004).