When Is Sex Because of Sex? The Causation Problem in Sexual Harassment Law

Abstract

In Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the Supreme Court disapproved what I call the per rule, the notion that sexual conduct without more established the element in a sexual harassment claim: that the conduct was because of sex. Nearly contemporaneously with Oncale, leading feminist accounts of sexual harassment the of sexual harassment scholarship have themselves abandoned the sex per se rule. The feminist theorists' goal has been to solve a complex of problems coming under the label essentialism, the problematic notion that womanhood is a monolithic concept and there is a single problem of sex discrimination which can be solved by a unified solution. For these second generation theorists, the sex per se rule is inextricably tied to the essentialism of Catharine MacKinnon's classic antisubordination theory articulated in Sexual Harassment of Working Women. Second generation seek to expand sexual harassment doctrine to include claims by gender-nonconforming men and women and claims of non-sexual harassing conduct, while at the same time attacking the sexual paternalism that has arisen from courts' watered-down adoption of MacKinnon's views. However, in Oncale, the result of the Court re-examining the issue of causation without embracing the feminists' antisubordination values, has been to set sexual harassment law back. The result unintended by feminist theorists is to make more difficult the proof of causation for core sexual harassment claims, cases in which sexual harassment was not motivated by sexual attraction toward the victim. In this article, I argue the sex per se rule has helped combat the subordination of women in the workplace by easing otherwise potentially difficult problems in proving causation, and it could function in the same way to combat subordination based on gender more broadly conceived. Feminist theorists, I argue, have misunderstood the role of causation in sexual harassment cases, which has led to two practical failures. First, these have failed to anticipate the consequences of a judicial re-examination of the causation issue by courts (such as the Oncale Court) that have seldom adopted an antisubordination theory of discrimination. Second, the have failed to recognize the value of retaining the sex per se rule. I argue further that a sex per se rule is entirely consistent with the anti-essentialist goals of the second generation theorists. After Oncale, therefore, the first order of business for of sexual harassment law should be to rehabilitate the sex per se rule by showing courts that it has a viable theoretical and textual basis.