Under current sexual harassment law, the trier of fact in a same-sex sexual harassment lawsuit is likely to judge the alleged behavior of a gay sexual harassment defendant more harshly than it would judge the identical behavior in a context where the defendant was not of the same sex as the plaintiff. This bias to a gay sexual harassment defendant arises because the “reasonable person” constructed by the trier of fact in evaluating whether an alleged act of hostile environment sexual harassment should be actionable is, under the author's theory, a non-gay person with a heterosexist world view. The bias the author identifies exemplifies a common manifestation of such heterosexism: an activity that is condoned or even valued when engaged in by a non-gay person is condemned when engaged in by a gay person.
One means for alleviating this bias is for courts to refuse to recognize a cause of action under Title VII for same-sex sexual harassment. This result would be consistent with the refusal of federal courts to apply the “but-for” or “differences” theory of sex discrimination to recognize that sexual orientation discrimination is sex discrimination. Courts have justified their refusal to recognize a cause of action for sexual orientation discrimination under Title VII's sex discrimination prohibition by arguing that Congress has not shown an intent to specifically proscribe sexual orientation discrimination. These courts should apply such a “negative inference” principle across the spectrum of sex discrimination cases and also refuse to proscribe same-sex sexual harassment because Congress has not shown any intent to make such behavior actionable under Title VII. An alternate means for alleviating the heterosexual bias that also recognizes the utility of having a remedy under Title VII for same-sex sexual harassment is for courts to instruct the trier of fact in a same-sex sexual harassment lawsuit to evaluate the actions of the defendant in the hypothetical context of a mixed-sex interaction. Thus, the gay supervisor who has commented on his male subordinate's physical appearance, in theory, would be judged as though he had commented on the appearance of a female subordinate.
18 Berkeley J. Emp. & Lab. L. 56