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Emory University School of Law Public Law & Legal Theory Research Paper Series Research Paper No. 05-25 FORM AND (DYS)FUNCTION IN SEXUAL HARASSMENT LAW: BIOLOGY, CULTURE, AND THE SPANDRELS OF TITLE VII Julie A. Seaman Emory University School of Law This paper can be downloaded without charge from: The Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/abstract=758509 FORM AND (D YS )F UNCTION IN SEXUAL HARASSMENT LAW: Biology, Culture, and the Spandrels of Title VII Julie A. Seaman † ABSTRACT: 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. I. INTRODUCTION ......................................................................................323 II. APPLICATION TO SELECTED CONTEXTS ................................................334 A. Preexisting Sexualized Atmosphere in the Workplace ...................334 B. Same-Sex Male on Male Harassment ............................................335 C. One or a Few Women in a Predominantly Male Workplace .........335 III. THE DEVELOPMENT WARS : BEYOND GENES VERSUS ENVIRONMENT ......................................................................................336 A. Arguments from Nature: Natural Selection and Sexual Selection .........................................................................................340 1. Sex Difference Through an Evolutionary Lens .......................347 2. Female Choice in Biology and Evolution —Emerging Theories...............................................................353 B. Arguments from Nurture: Theories of Social Construction ...........355 C. Nature and Nurture in the Law of Sexual Harassment ..................361 1. Sex Differences in Cognitive Ability and Preferences ............368 2. Evolutionary Arguments and Hostile Work Environment Sexual Harassment Law...........................................................375 3. Summary ..................................................................................378 IV. EVOLUTIONARY EXPLANATIONS FOR TYPICAL HARASSMENT BEHAVIORS ...........................................................................................384 A. Recurring Patterns in Harassment Cases ......................................385 B. Evolutionary Explanations .............................................................388 1. “Give Me What I Want” ..........................................................389 2. “Get Out of My Space”............................................................397 3. “Take It Like a Man” ...............................................................402 4. The Significance of the Workplace Context Under Evolutionary Theory ................................................................405 V. DOCTRINAL SPANDRELS IN THE LAW OF SEXUAL HARASSMENT ..........410 A. The Terminology Spandrel: What is “Sex?” .................................412 B. The “Mother’s Eyes, Father’s Nose” Spandrel: Who Are the Parents of Hostile Environment Sexual Harassment Law? ...........416 1. The Analogy to Race................................................................417 2. The Feminist Anti-Subordination Argument ...........................421 C. The Causation Spandrel: Whose Intention Counts? ......................425 VI. CONCLUSION .........................................................................................432 37:0321] SEXUAL HARASSMENT LAW 323 The great central dome of St Mark’s Cathedral in Venice presents in its mosaic design a detailed iconography expressing the mainstays of Christian faith . Each quadrant meets one of the four spandrels in the arches below the dome. Spandrels—the tapering triangular spaces formed by the intersection of two rounded arches at right angles—are necessary architectural by- products of mounting a dome on rounded arches . The design is so elaborate, harmonious and purposeful that we are tempted to view it as the starting point of any analysis, as the cause in some sense of the surrounding architecture. But this would invert the proper path of analysis. 1 I. INTRODUCTION The conflict between those who would explain human behavior as a product of genes and those who would explain it as a product of environment is an old one. Recently, however, the debate has garnered renewed public interest with the “mapping” of the human genome 2 and stories in the press about genes “for” traits and behaviors from shyness to depression to homosexuality. 3 The debate is reflected, too, in the legal 1. Stephen Jay Gould & Richard C. Lewontin, The Spandrels of San Marco and the Panglossian Paradigm: A Critique of the Adaptationist Programme , 205 PROC . OF THE ROYAL SOC . OF LONDON 581, 581–82 (1979). 2. See MATT RIDLEY , GENOME : T HE A UTOBIOGRAPHY OF A S PECIES IN 23 CHAPTERS , at 2 (2000) (“On June 26, 2000, President Bill Clinton in the White House and Tony Blair in Downing Street simultaneously announced that the rough draft [of the entire human genome] was complete.”). For examples of contemporaneous media accounts, see Sharon Begley, Just How Many Genes Does It Take to Make a Human? Wanna Bet? , WALL ST. J., May 23, 2003, at B1; Claire Fraser, Who’s Next , NEWSWEEK , Dec. 31, 2001, at 83; Bernadette Tansey, Genome Project Completes Map of Human DNA , S.F. CHRON ., Apr. 15, 2003, at A2; Nicholas Wade, Gene-Mappers Take New Aim at Diseases , N.Y. TIMES , Oct. 30, 2002, at A23; Unraveling the Genome , NEWSWEEK , June 24, 2002, at 76. 3. E.g. , Mike Bygrave, The Year of the Gene: False Dawns in the Brave World of New Genetics , OBSERVER , Dec. 22, 2002, at 20; Benedict Carey, Payback Time: Why Revenge Tastes So Sweet , N.Y. TIMES , July 27, 2004, at F1 (“[T]he urge to extract a pound of flesh, researchers find, is primed in the genes.”); Gene Linked to Shyness , TIMES (London), Apr. 15, 2003, at Public Agenda 6; Mental Health: Genetic Differences Partly Account for Higher Incidence of Depression in Women , GENOMICS & GENETICS WKLY ., Aug. 8, 2003, at 34 (discussing findings regarding a gene “for” depression in women); “Shyness Gene” Discovered , HEALTH NEWSWIRE CONSUMER , Apr. 8, 2003; Environmental Factors Triggering Illness and What Scientists are Doing to Identify the Genes That Contribute to Depression (NPR radio broadcast, July 18, 2003) (discussing a “gene for” depression). The 2003 Pulitzer Prize for literature was recently awarded to a novel depicting a genetically male person with a rare recessive genetic mutation that results in his being born with ambiguous outward genitalia and raised as a female and then, 324 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. academy and in the contours of the law itself. The recent law and evolution scholarship, on the one hand, and some feminist legal scholarship, on the other, tend to approach legal issues from the contrasting perspectives of either biology or culture. 4 In addition, courts routinely rely on