Reconsidering Attraction in Sexual Harassment MARTIN J. KATZ* TABLE OF CONTENTS INTRODUCTION .10.................................................................................................... 102 I. ATrRACTION THEORY AND CAUSATION IN SEXUAL HARASSMENT CASES .......... 105 A. Proving Causation with Attraction Theory ............................................... 107 B. The Rise of Attraction Theory in Sexual Harassment Doctrine................ 112 II. COVERAGE GAPS AND THE FALL OF ATTRACTION THEORY ............................... 120 A. Same-Sex Cases Based on Attraction by Gays and Lesbians.................... 121 B. The B isexuality Gap .................................................................................. 125 1. The Existence of the Bisexuality Gap ................................................ 127 a. The "Doubting Bisexuality" Approach ........................................ 127 b. The "If You Don't Like the Definition Change It" Approach ..... 128 c. The "Same Harm" Approach ....................................................... 129 d. The "There Might Be Causation" Approach ............................... 129 e. The "Proving Causation by Other Methods" Approach .............. 129 f. The "Secondary Discrimination" Approach ................................. 130 2. The Size of the Bisexuality Gap ......................................................... 131 a. Preferential Bisexuals (Kinsey Is, 2s, 4s, or 5s): Attraction-Based Conduct Consistent with Preference ................................................ 133 b. Preferential Bisexuals (for Example, Kinsey Is, 2s, 4s, or 5s): Attraction-Based Conduct Contrary to Preference .......................... 136 3. The Significance of the Bisexuality Gap ............................................ 137 C. HarassmentBased on Motivations Other Than Sexual Attraction ........... 139 D. PracticalIssues in the Application of Attraction Theory ......................... 144 1. Proving A ttraction .............................................................................. 144 2. Proving M onosexuality ...................................................................... 145 a. How Plaintiffs Can Prove Monosexuality ................................... 145 (1) Self-Reporting by Harassers ............................................... 146 (2) The Harasser's Sexual History ........................................... 148 (3) The Fact of an Attraction-Based Conduct .......................... 149 b. Presumptions Regarding Sexual Orientation ............................... 151 (1) Arguments for a Presumption of Monosexuality ................ 151 (2) Arguments Against a Presumption of Monosexuality ........ 154 (3) A Bilateral Presumption of Monosexuality ........................ 155 E. Summary: The Significance of Attraction Theory's Coverage Gaps ........ 157 III. POTENTIAL NORMATIVE CRITIQUES OF ATTRACTION THEORY ........................ 157 A. InequalitiesResulting from Coverage Gaps ............................................. 157 1. Unequal Treatment of Victims ........................................................... 157 2. Unequal Treatm ent of Harassers ....................................................................... 159 * Assistant Professor of Law, University of Denver College of Law. This Article is dedicated to the University of Denver College of Law's inaugural year in its new University Park law center. I would like to thank Penny Bryan, Ed Dauer, Federico Cheever, Alan Chen, Roberto Corrada, Nancy Ehrenreich, Dan Friesen, Joyce Sterling, and Phil Weiser, as well as the attendees at the Work in Progress workshop, for their helpful comments and encouragement. Thanks to Bill Shapiro, Leslie Abernathy, Willow Arnold, Tanya Thiessen, James Therrell, and Anita Drasan for their helpful research assistance. Any errors are mine. INDIANA LAW JOURNAL [Vol.79:101 a. R ule of Law Issues ...................................................................... 159 b. Potential for Evasion of Liability ................................................ 160 B. Accounting for Power ............................................................................... 162 1. The Effect of Attraction Theory on Perceptions of Legal Actors ....... 164 2. Public Perceptions: The Narrative Appeal-or Lack of Narrative Appeal- of A ttraction Theory ............................................................................... 167 C. Burdening Sexual and OtherMinorities ................................................... 168 D. Privacy and Proof of Monosexuality ........................................................ 170 1. Protecting Privacy by Presuming Monosexuality ............................... 171 2. Discovery and Procedural Protections for Privacy ............................. 172 IV. THE EFFICACY OF ALTERNATIVE THEORIES OF CAUSATION ............................ 173 C ONCLUSION ......................................................................................................... 175 INTRODUCTION A battle is being fought over how to conceptualize sexuality in the workplace-a battle with critically high stakes for sexual harassment plaintiffs. One side, which tends to be associated with the feminists of the late 1970s and early 1980s, sees workplace sexuality as a manifestation of sexual desire or attraction.' The other side, consisting of the vast majority of modem or "second-generation" feminists,2 sees workplace sexuality as an expression or manifestation of gender-based power dynamics. The attraction-based view was highly influential in shaping the early development of sexual harassment law. However, in modem times, at least within the academy, the attraction-based view has fallen into extreme disfavor and the power-based view has achieved ascendance nearly to the point of orthodoxy. 3 Within the academy the attraction-based view is almost universally regarded as problematic at best, or backward and archaic at worst. Modem scholars either attack the attraction-based view, or they ignore it.4 Among those that attack it, some might deign to keep the 1. The early feminists actually offered up several theories of workplace sexual conduct, including sophisticated theories based on conceptions of sex- and gender-based dominance and power, as well as theories based on attraction. See, e.g., CATHERINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN (1979). However, the theory that the early courts adopted from this work-and, hence, the theory that tends to be associated with the early feminists-is one based on sexual attraction. 2. Professor Schwartz lists Kathryn Abrams, Anita Bernstein, Katherine Franke, and Vicki Schultz as examples of second generation feminists. David S. Schwartz, When is Sex Because of Sex? The Causation Problem in Sexual Harassment Law, 150 U. PA. L. REv. 1697, 1700 (2002). 3. See Doe v. City of Belleville, 119 F.3d 563, 588 (7th Cir. 1997), vacated by 523 U.S. 1001 (1998) ("Harassment, like other forms of victimization, is often motivated by issues of power and control on the part of the harasser."); Susan Estrich, Sex at Work, 43 STAN. L. REv. 813, 820 (1991) (indicating that sexual harassment is about men exercising power over women); Schwartz, supra note 2, at 1721 ("It has long been broadly acknowledged 'that men engage in offensive sexual conduct in the workplace primarily as a way to exercise or express power, not desire."') (quoting Katherine M. Franke, What's Wrong with Sexual Harassment?,49 STAN. L. REV. 691, 743 (1997)); see also MACKINNON, supra note 1, at 1 ("Central to the concept [of sexual harassment] is the use of power derived from one social sphere to lever benefits or impose deprivations in another."). 4. E.g., Vicki Schultz, ReconceptualizingSexual Harassment, 107 YALE L.J. 1683, 1686 (1998) (attacking attraction-based view); Franke, supranote 3, at 740-47 (same); Estrich, supra note 3, at 820 (same); Anita Bernstein, Treating Sexual Harassmentwith Respect, 111 HARv. L. 2004] RECONSIDERING ATTRACTION attraction-based view within the arsenal of weapons available to fight sexual harassment. However, these writers treat this view as an embarrassment-something to be tolerated only for its potential usefulness in persuading unsophisticated judges, juries, and laypersons to support plaintiffs in harassment cases, but certainly not a paradigm to be analyzed seriously.5 Others advocate discontinuing the use of the attraction-based view altogether.6 As a result of this treatment, the attraction-based view seems to have entered a death spiral. Despite the fact that courts have been relying on this view for over twenty years, the attraction-based paradigm has been completely under-analyzed. This under- analysis has resulted in confusion and frustration in trying to apply this paradigm. Confusion and frustration have fueled criticism of the attraction-based view. And this criticism, now to the point of derision, has tainted the attraction-based paradigm to the point where no one will engage in any serious analysis of it.7 And so it continues. Outside of the academy, courts and practitioners continue to rely on the attraction- based view.8 However, as a result of the academy's derision of this view, as well as the confusion and frustration that surround it, courts and practitioners are under increasing pressure to reduce or discontinue their reliance on it. At least one influential judicial opinion has criticized the attraction-based view,9 highlighting the possibility that the barrage of academic criticism may ultimately bury this view