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14 Dukeminier Awards: Best Sexual Orientation and Gender Identity Law Review 525 (2013)

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Duke LawJournal

VOLUME 63                   DECEMBER 2013                      NUMBER 3

                     INFERRING DESIRE

                          JESSICA A. CLARKEt


       In the course of debates over same-sex marriage, many scholars
    have proposed new legal definitions of sexual orientation to better
    account for the role of relationships in constituting identities. But
    these discussions have overlooked a large body of case law in which
    courts are already applying this model of sexual orientation, with
    inequitable results.

       This Article examines a set of fifteen years of sexual harassment
    decisions in which courts have endeavored to determine the sexual
    orientations of  alleged  harassers. Under federal law, sexual
    harassment is actionable    because  it is a   subspecies of sex
    discrimination. A man who makes unwanted sexual advances toward
    a woman discriminates on the basis of sex, courts presume, because
    he would not have made sexual advances toward another man. In
    1998, the Supreme Court ruled that the same presumption is available
    in a case of same-sex harassment, i.e., a man harassing a man, if there
    is credible evidence that the harasser was homosexual. Since then,
    federal courts have decided 154 cases on whether a harasser was
    homosexual or experienced same-sex desire, often conflating the two

Copyright © 2013 Jessica A. Clarke.
    t Associate Professor, University of Minnesota Law School. This Article benefitted from
the comments of Jennifer Drobac, Elizabeth Emens, Michele Goodwin, Melissa Hart, Jill
Hasday, Brittney Miller, Rebecca Morrow, David Noll, Hari Osofsky, Jessica Roberts, Marc
Spindelman, Charles Sullivan, and workshop participants at the University of Minnesota Law
School, the 2013 Annual Meeting of the Association of American Law Schools, the 2012 Law &
Society Conference, the Seton Hall Employment & Labor Law Scholars' Forum, and the
Columbia Law School Associates' and Fellows' Workshop. I am grateful to Caitlinrose Fisher,
Robin Lehninger, Michael Schubert, and the University of Minnesota Law Library for superb
research assistance.

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