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Оглавление· 2 · the supreme court discovers sexual harassment
Meritor Savings Bank v. Vinson
Mechelle Vinson was definitely not the first American woman whose work life was made miserable—and ultimately intolerable—by a supervisor who treated her as a sex object. She was, however, the woman whose case made legal history when the United States Supreme Court first recognized sexual harassment as a violation Title VII of the Civil Rights Act of 1964. In response to Vinson’s claim, Chief Justice William Rehnquist wrote the opinion which was joined by all members of the Court.1 The justices were ready to go on record defining sexual harassment as a form of discrimination on the basis of sex. Vinson’s case reached the Supreme Court after a District Court had denied relief and the Court of Appeals had reversed that decision. Vinson’s employer, the Meritor Savings Bank appealed to the high court to resolve the conflict.
For years before the justices ruled in Vinson’s case, the issue had been argued and considered in a number of lower courts. In addition, the Equal Employment Opportunity Commission (EEOC) had issued guidelines regarding the ←17 | 18→meaning of sexual harassment as a violation of Title VII of the Civil Rights Act. Lower courts had heard numerous claims of sexual harassment since the 1970s but most had been denied. Many of these cases involved a male supervisor who propositioned a female subordinate. Typically when she refused, she was fired. Judges tended to see such a scenario as “personal proclivity” motivated by sexual desire, not as a matter of sex discrimination. Perhaps, they indicated, the proposition was a compliment, not an insult, and it certainly did not resemble illegal forms of biased behavior such as racial discrimination. “Romantic” advances in the workplace were “beyond the reach of Title VII.” The conduct was not seen as part of a larger social framework that treated women unequally but as isolated social events involving two individuals.2 As Catharine MacKinnon wrote prior to Vinson, sexual harassment was treated as a “peccadillo” or as a perk of position, not as a legal issue. It was up to the courts to transform a mere “moral foible (if that) to a legal injury with equality rights,” a public claim with consequences that could be “financial, reputational, political, as well as personal.”3 The courts had such an opening when Paulette Barnes who (ironically) worked for the office of equal employment opportunity at the Environmental Protection Agency (EPA) claimed that her boss demanded sexual favors and promised, if she cooperated, to promote her to a higher position. When she refused, he retaliated. In federal district court, Barnes was told that the situation was only an “inharmonious personal relationship,” not a matter of law. Around the same time, two women who worked for Bausch and Lomb whose supervisor pestered them with verbal and physical propositions were informed that the courts could not get involved every time an employee “makes amorous or sexual advances to another.” The only way, in the view of that judge, to prevent such “amorous advances” would be to staff businesses with asexual employees. Adrienne Tomkins, a secretary at a New Jersey electric company, had a supervisor who told her they could not have a working relationship unless they had sex. He physically restrained her when she refused. Tomkins was subsequently transferred and later fired from her job. A judge explained why her claim was dismissed, offering a slippery slope explanation. He said that her complaint was rejected because if she won her case there would be too many women bringing their problems to court. He gave the example, “If an inebriated approach by a supervisor to a subordinate at the office Christmas party could form the basis of a federal lawsuit for sex discrimination if a promotion or a raise is later denied to the subordinate, we would need 4000 federal judges instead of some 400.”4 Clearly this judge was fully aware of the prevalence of harassment, but he simply chose to see it as ←18 | 19→the way men naturally behaved. If women suffered professional consequences, those outcomes were both foreseeable and irremediable.
Meanwhile, as the courts were negating the seriousness of claims of sexual harassment, other government agencies and branches were beginning to grapple with the issue. In Congress, the House Subcommittee on Investigations of the Post Office and Civil Service Committee looked into sexual harassment in federal agencies. Women’s organizations and feminist activists testified to the prevalence of sexual misconduct. Eleanor Holmes Norton, the Director of the EEOC, presented the committee with data about the history and pervasiveness of the issue. She argued that the federal government needed to set the tone that would make sexual harassment unacceptable in any workplace.5
The EEOC issued its first set of guidelines defining sexual harassment as a form of discrimination in 1980. They stated that “unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature constitute sexual harassment when … such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.”6 Under EEOC guidelines, employers would be strictly liable for any such acts by supervisory employees and liable for the acts of others if “employers knew or should have known of the harassment and failed to take immediate and appropriate corrective action.”7 Responses to the guidelines came from all sides. Employers argued that they should not be responsible for personal problems that developed between male and female employees. Some feminists applauded the EEOC’s efforts and promoted the view that sexual harassment was a violation of women’s civil rights as it impaired their participation in the workforce. Other feminists were skeptical of any government involvement in defining the problem, fearing that such an approach would be legalistic, bureaucratic, and individualized and would not lead to a needed social transformation. Some believed that any progress on the issue needed to be controlled by women and not enmeshed in the political process.8 Indeed, political changes—the election of Ronald Reagan in 1980 and the advent of a more conservative administration—did lead to regression in policies related to civil rights in general and sexual harassment in particular. Reagan cut the budget of the EEOC and appointed Clarence Thomas as its director. Republican-appointed conservative judges overruled EEOC guidelines in the area of employee liability, refusing to punish “innocent” employers for their employees’ behavior. Accused men attempted to file lawsuits for defamation. Although these lawsuits generally failed, most likely they discouraged women ←19 | 20→from making complaints.9 In conservative publications, articles made the same arguments about sexual harassment that had often been made about rape. It was an individual problem motivated by sexual desire (not a social issue) motivated by power; women were often responsible because of the way they dressed or spoke; many women made false charges especially if romances went wrong; poor innocent men were confused about what was permissible behavior.10 Against this background where momentum to protect women from sexual harassment seemed to be waning, it was fortunate that Judge Spotswood Robinson of the Federal Court of Appeals for the District of Columbia presided over the court that would hear several of the landmark cases establishing sexual harassment as a form of discrimination on the basis of sex.
Judge Robinson spent most of his career working in the area of civil rights law. Before being appointed to the federal bench, he had been a member of the national Commission on Civil Rights, an attorney for the NAACP in the era of Brown v. Board of Education, and served as Dean of Howard Law School, known for graduating scores of civil rights attorneys. He had no difficulty in seeing the similarities between racial harassment and sexual harassment. He was especially sensitive to the experience of African American women and the “damaging influence of racialized sexual stereotypes.”11 Thus when in 1977 Judge Robinson wrote the opinion in Paulette Barnes’s case before the D.C. Court of Appeals, he rejected the lower courts conclusion that Barnes was demoted “not because she was a woman but because she refused to engage in sex with her supervisor.” He stated that “We cannot accept this analysis … But for her womanhood, from aught that appears, her participation in sexual activity would never have been solicited.”12 In other words, Robinson refused to parse the situation to separate Barnes’s sex—woman—from her gender—a target of her boss’s sexual advances. He went on to state, “To say, then that she was victimized in her employment simply because she declined the invitation is to ignore the asserted fact that she was invited only because she was a woman subordinate to the inviter in the hierarchy of agency personnel …. Thus gender cannot be eliminated from the formulation … and that formulation advances a prima facie case of sex discrimination within the purview of Title VII.”13 Here one can find Robinson’s sensitivity to discrimination in the workplace as it contributes to and perpetuates inequality. If the point of Title VII is to reduce and eliminate discrimination based on sex, and if harassment both evidences and enhances that discrimination, then sexual harassment must be prohibited by Title VII. Judge Robinson’s understanding of Barnes’s case as well as his subsequent rulings changed the focus from the victim (what ←20 | 21→did she do to attract sexual attention?) to the harasser (what did he do to negatively affect her work environment?). The shift in focus would be critical in future understanding of sexual harassment, yet courts would not apply it consistently.
Robinson participated in a three-judge panel that issued another significant opinion in 1980 in the case of Sandra Bundy, an employee of District of Columbia Department of Corrections. Bundy had been subjected to what the lower court called “improper sexual advances” that were “standard operating procedure, a fact of life, a normal condition of employment” at the agency where she worked. Having admitted this situation, the district court then found that Bundy did not have a claim of discrimination based on sex because, even though she had experienced ongoing harassment, she had not lost her job.14 The district court perceived the treatment of female employees at the Department of Correction to be merely a game the “boys” played on the job. The game was permissible if women were only mistreated, as long as they were not fired.
Robinson’s colleague on the Court of Appeals, Judge J. Skelly Wright was also a veteran of civil rights litigation and a jurist who understood the emerging issue of sexual harassment. In Bundy’s case, he rejected the notion that offensive behavior toward female employees was just a game and that a victim had to experience a tangible loss in order for the conduct to be considered discrimination that affected the “terms, conditions, or privileges of employment” mentioned in Title VII. There did not need to be a quid pro quo arrangement for sexual harassment to occur. In other words, the Bundy case involved the question of whether sexual harassment that created a hostile environment met the test for discrimination based on sex. Judge Wright’s opinion answered that question in the affirmative. The D.C. Court of Appeals saw a comparison with cases where harassment based on race created a hostile work environment. They cited “environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers,”15 and drew an analogy with sexual harassment. Conditions of employment, the court stated, included the environment. Sexual harassment “injects the most demeaning sexual stereotypes into the general work environment.” Such behavior was an “intentional assault on an individual’s innermost privacy.”16 They also referenced the EEOC guidelines which referred to a type of sexual harassment that created “an intimidating, hostile, or offensive work environment.”17 In addition, the opinion quoted directly (without quotation marks) from Catharine MacKinnon’s book, Sexual Harassment of ←21 | 22→Working Women. In her words, it was wrong for courts to conclude that “[S];o long as the sexual situation is constructed with enough coerciveness, subtlety, suddenness, or one-sidedness to negate the effectiveness of the woman’s refusal, or as long as her refusals are simply ignored while her job is formally undisturbed, she is not considered to have been sexually harassed.”18 She has been. All of this added up to a ruling that a loss of tangible job benefits was not a requirement for a finding of sexual harassment but that activities that created a hostile work environment were equally prohibited under Title VII. These legal developments were critical to the D.C. Court of Appeals’ holding in Mechelle Vinson’s case and critical to the Supreme Court’s decision in Meritor Savings Bank v. Vinson.
On September 22, 1978, Mechelle Vinson filed a complaint in federal court against Sidney L. Taylor, her supervisor, and Capital City Savings and Loan Association (which later through mergers became Meritor Savings Bank). She alleged that Taylor had coerced her into engaging in sexual activities she did not want and that the bank knew of Taylor’s conduct but failed to stop him.19 Her claim was that she had been a victim of sexual harassment which was a form of discrimination based on sex in violation of Title VII of the Civil Rights Act of 1964. It is worth noting that Vinson’s case went to trial after Barnes had established that sexual harassment is a form of gender discrimination but before Bundy had dealt with the issue of hostile environment.
Even before the trial began, District Judge John Garrett Penn who heard the case issued two rulings that could negatively affect Vinson’s claim. He refused to allow the testimony of two other women who alleged that Taylor had also harassed them and he permitted testimony about Vinson’s style of dress and her conversations with her colleagues about sexual fantasies. Even with these limitations, she had a powerful case. As Vinson told her story, she was 19 years old and looking for a job when she ran into Sidney Taylor who managed a bank in her neighborhood. During their encounter on the street, Taylor suggested that Vinson stop by the bank and pick up an application. She did so, Taylor recommended her for a position, and she was hired as a teller-trainee on September 9, 1974. At first the manager was helpful—even fatherly—as he assisted her with learning the job and expressed a willingness to help her out financially. However, about nine months after Vinson was hired, Taylor took her to dinner and demanded that she go to bed with him. ←22 | 23→He claimed that she owed him for her job. He also indicated that he had the power to have her fired if she refused. Unwillingly, Vinson did have sex with Taylor and did so in answer to his demands over the next two years. She estimated that there were forty to fifty sexual encounters—in the bank vault, in the basement of the building—both during and after work hours. She also charged that on occasion he had forcibly raped her with such brutality that she was forced to seek medical attention. Other times he exposed himself to her and grabbed her breasts and buttocks, sometimes in the presence of other employees. In addition, he made lewd remarks to her within the hearing of others. All of this humiliating behavior ended only in 1977 when Vinson became involved with a steady boyfriend. She also claimed that Taylor had tampered with her employment records. In September 1978, Vinson told the bank she was taking an extended sick leave, brought about, she said, by the mental and physical toll of the harassment. In November of that year, the bank fired her. At about the same time, she submitted a letter of resignation. She had already filed her lawsuit against Taylor and the bank.20
Taylor denied all of Vinson’s charges against him, saying there had been no sexual relations, and claiming that Vinson had made advances toward him which he had rebuffed. He also argued that Vinson had refused to follow his instructions about training another teller and that she had ultimately been discharged for excessive absences. He wanted the court to believe that Vinson was simply being vindictive and seeking revenge against him because he refused her attentions and because he criticized her work ethic. The bank’s position was that even if the accusations against Taylor were true, it bore no liability because it did not know about or approve of the behavior. Additionally, the bank denied that Taylor had the authority to hire or fire employees, and asserted that his title of manager was only an honorific and not indicative of his actual power.
The trial lasted eleven days and at its conclusion Judge Penn dismissed all of Vinson’s claims. The trial court never determined the truth of the alleged misconduct but decided that if there had been a sexual relationship between Vinson and Taylor, “it was voluntary and had nothing to do with her continued employment at the bank and therefore [she] was not the victim of sexual harassment.”21 He further found that because the bank had not been aware of the allegations against Taylor, it could not be liable. After losing in the trial court, Vinson took her grievance to the Court of Appeals of the District of Columbia, where it was heard in 1982 by a three-judge panel that included Judge Spottswood Robinson as well as Judge J. Skelly Wright.
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The Court of Appeals reversed the District Court’s decision in Vinson v. Taylor, but the ruling was not handed down until three years later due both to Judge Robinson’s health and the overload of cases before the D.C. Circuit.22 Robinson stated that there were two types of sexual harassment claims: the quid pro quo variety as Paulette Barnes had experienced and the hostile environment type described in the Bundy case. Although the appellate court was required to defer to the lower court’s finding of fact (that if there was a sexual relationship it did not affect Vinson’s advancement or continued employment at the bank), Robinson was able to finesse the matter by referring to the ruling in Bundy. That opinion had held that a loss of tangible job benefits was not a requirement for a finding of sexual harassment, but that such a claim could be sustained if a hostile work environment existed. Thus Judge Robinson could find that the appropriate test in Vinson’s case was whether Taylor “created or condoned a substantially discriminatory work environment, regardless of whether the complaining employees lost any tangible job benefits as a result of the discrimination.”23 Secondly the Court of Appeals, citing the EEOC guidelines, held that the test of sexual harassment was not whether a person complied with demands for sex but whether the advances were unwelcome. This was a critical portion of the ruling as it changed the criterion for sexual harassment from one that focused on the victim (did she capitulate?) to one that focused on the harasser (did he put her in an intolerable position?)
In the lower court, Judge Penn had allowed testimony that Vinson’s style of dress and her personal fantasies were relevant to determining whether the sexual activity had been voluntary. Apparently in his view a woman whose skirts were short or whose necklines were plunging was signaling some sort of receptivity to her supervisor’s advances. The Court of Appeals thought otherwise. “Since under Bundy, a woman does not waive her Title VII rights by her sartorial or whimsical proclivities, that testimony has no part in this litigation.”24 Finally, on the question of employer liability, Judge Robinson found that Title VII was intended to hold employers strictly liable for discriminatory behavior by supervisory employees.
Rather than accepting the ruling of the three-judge panel of the Court of Appeals and settling with Mechelle Vinson, the bank decided to appeal to the entire judicial bench of the D.C. Circuit. The bank asked all the court’s judges, thirteen in all, to sit together (en banc) to hear its case. The judges refused by a vote of 10 to 3. Ironically the three judges who dissented were Judge Robert Bork (later a Reagan nominee to the Supreme Court rejected by the Senate for his very conservative views), Judge Antonin Scalia (nominated ←24 | 25→by Reagan to the Supreme Court, serving from 1986 to 2016), and Judge Kenneth Starr (later the special prosecutor who wrote the report to impeach President Bill Clinton).25 Apparently skeptical of the whole concept of sexual harassment, Bork wrote their dissent which suggested that Vinson (given her style of dress and discussion of her fantasies) and other similar women might use claims fabricated after the fact to bring lawsuits against their employers. Their coworkers and employers would be helpless to defend themselves against such accusations.26 If that were true, the District Court had been correct in rejecting her claim.
The Supreme Court heard the case on March 25, 1986 and issued its ruling three months later.27 They considered whether hostile environment sexual harassment constitutes discrimination under Title VII as well as the issue of employer liability in cases of sexual harassment. As usually happens, the Court received a great many briefs from amici curiae (friends of the Court), presenting arguments on both sides of the question. Interestingly, the EEOC (at the time headed by Clarence Thomas) sided with the bank on the issue of liability. Their brief argued that although hostile environment harassment is illegal, Vinson did not experience a hostile environment and therefore, the bank was not liable.28 The EEOC further distinguished sexual harassment from racial discrimination, arguing that although the latter is always hostile, sexual advances may be based on attraction rather than enmity and therefore not unwelcome. Several of the amici on the bank’s side repeated the allegations in Judge Bork’s dissent in the D.C. Circuit, suggesting that disappointed women would be likely raise false charges of sexual harassment after consensual romantic relationships ended.29 This view minimized the seriousness of the problem, urged the Court to treat it as inconsequential and to question the truthfulness of women complainants.
Friends of the court briefs on Vinson’s side included a lengthy argument from Catharine MacKinnon. She began by noting that the case lacked factual findings regarding whether any sexual misconduct had occurred or under what circumstances Mechelle Vinson left her job. Because the District Court simply denied Vinson’s claim without determining the truth of her allegations against Taylor, the Supreme Court would need to base its ruling on a hypothetical example of harassment. But, MacKinnon asserted, if the Court decided to make such a determination, it should find that “conditioning economic survival on sexual submission is as invidious a practice of discrimination as any other.” Such discrimination is destructive to an employee, whether it is in the form of a quid pro quo demand for sexual compliance or whether it ←25 | 26→involves an environment “permeated with sexual hostility and denigration.”30 MacKinnon urged the Court to think of the two forms of sexual harassment, not as totally distinct but as “poles of a continuum that operates on a time line.”31 A hostile environment might (or might not) eventually become a threat to one’s job but the victim should not have to wait until she was fired to seek relief. Sexual harassment was likely to be a pattern of discriminatory behavior, not an isolated remark or incident. MacKinnon argued that “welcomeness” not consent, should be the test of harassment. If a victim repeatedly rejects the inappropriate advances of the harasser, she was expressing the message that the advances are unwelcome, even if she ultimately succumbs.32 MacKinnon addressed the issue of employer liability where she agreed with the Court of Appeals that employers were responsible if a supervisor created a hostile work environment for a subordinate, just as an employer would be liable for other forms of discrimination. Finally, MacKinnon rejected the District Court’s examination of Vinson’s dress and fantasies as irrelevant to whether or not she may have consented to Taylor’s advances. “[I];t is an assassination of character. It is a reversion to an atavism from the law of rape that ‘a rape accusation … [is] the product of a woman’s over-active fantasy life or … [the] consequence of a women’s communication of her sexual desires, subtly or otherwise to a hapless male’.”33 Ultimately, the brief argued that the Supreme Court should either remand the case back to the District Court to develop the facts or it should affirm the holding of the Court of Appeals.34
The Supreme Court did neither. Although the justices affirmed the finding that Mechelle Vinson had experienced sexual harassment, they rejected several of the appellate court’s rulings. Chief Justice William Rehnquist wrote the opinion of the Court. All nine justices joined in the judgment, although there were two separate concurring opinions written by Justice John Paul Stevens and Justice Thurgood Marshall.35 Critical to the Court’s opinion was the statement that violations of Title VII of the Civil Rights Act were not limited to acts of tangible or economic discrimination. They held that the words of the law, “terms, conditions, or privileges of employment” were intended to “strike at the entire spectrum of disparate treatment of men and women in employment.”36 Congress did not mean for the protections in the act to be limited to hiring, firing, or salary decisions. In addition to the words of Title VII, the Court relied on the 1980 EEOC Guidelines that defined sexual harassment as a form of discrimination and included noneconomic injuries within the prohibited conduct when “such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or ←26 | 27→creating an intimidating, hostile, or offensive working environment.”37 Thus the EEOC definition included both quid pro quo and hostile environment in its proscriptions and was intended to afford employees “the right to work in an environment free from discriminatory intimidation, ridicule, and insult.”38 However, the Court set limits. Not all offensive behavior rose to the level of a Title VII violation. “For sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment’.”39 Mechelle Vinson’s allegations certainly met that standard.
Not only did the Court rule that hostile environment sexual harassment was a form of discrimination, they also took issue with the District Court’s conclusion that the sexual relationship (if there was one) between Vinson and Taylor was “voluntary.” To say that Vinson was not forced against her will to participate in sexual activity is insufficient as a defense against a claim under Title VII. “The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome’.” In other words, the substantial part of such a claim is its unwelcomeness. That element should be determined based on whether the victim “by her conduct” indicated that the advances were not wanted.40 However, Rehnquist wrote that the Court of Appeals should not have excluded evidence of Vinson’s dress and speech as a factor in determining whether Taylor’s behavior was welcome. “Such evidence is obviously relevant.”41 It could form some portion of a trial court’s consideration of the “totality of circumstances” in which the harassment occurred.
Finally, the Court considered the question of employer liability. The Court of Appeals had found that employers were strictly liable for hostile work environments created by supervisors, even if the employer did not know of the harassment. But the Supreme Court evaded the issue, although they commented on it. They rejected the position that employers are always strictly liable. On the other hand, they also noted that the mere fact that an employer has an anti-discrimination policy is not enough to protect them from liability. Nor is it appropriate to have a grievance procedure that requires the employee to inform a supervisor, especially if that supervisor is the perpetrator of the harassment. But regarding the matter of liability, the decision in Meritor Savings Bank v. Vinson provided little guidance to employers or to lower courts and left the situation quite murky.
Justice Marshall’s concurring opinion was joined by Justices Brennan, Blackmun, and Stevens. They agreed that both forms of sexual harassment were violations of Title VII, but differed with the majority regarding employer ←27 | 28→liability. The minority who joined the concurrence would follow EEOC Guidelines that hold an employer responsible for the “acts of its agents and supervisory employees with respect to sexual harassment regardless whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence.” As for conduct between employees, the employer is also responsible “unless it can show that it took immediate and appropriate corrective action.”42 Justice Marshall pointed out that discrimination is rarely a matter of formal company policy, but is carried out by individuals. He cited applications of federal labor law where the act of a supervisory employee is imputed to the employer in cases of racial discrimination. Courts of Appeals have applied the same responsibility in cases of sexual harassment. Holding employers liable in instances of quid pro quo harassment but not in hostile environment situations seemed an untenable position. Supervisors not only hired and fired employees, they were also “charged with the day-to-day supervision of the work environment and with ensuring a safe, productive workplace. There is no reason why abuse of the latter authority should have different consequences than abuse of the former.”43 Marshall’s view did not carry the day in Meritor Savings Bank v. Vinson. The question of employer liability in cases of sexual harassment remained unresolved. It was one of several issues raised by critics of the decision.
Questions Remaining after Vinson
After the Supreme Court handed down its ruling in the Meritor Savings Bank v. Vinson, a number of questions remained unanswered. For one thing, the Court remanded the case back to the District Court to determine the validity of Vinson’s original claims based on the definition of hostile environment sexual harassment. Over the next four years, the parties provided Judge Penn’s court with additional arguments and evidence. During that time, Sidney Taylor was convicted of embezzling funds from the bank and sentenced to jail. Although the charges were different, the crime may have called Taylor’s credibility into question and made his employers less likely to defend him. For whatever reason, the bank finally settled with Mechelle Vinson in 1991. The terms of the settlement have never been disclosed.44 Ultimately Vinson won a victory for the law of sexual harassment. But any calculation of the costs and benefits she personally experienced is conflicting.
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For many commentators, the opinion gave rise to the observation that the justices had ignored issues of race. Nowhere in the ruling, even in Justice Marshall’s concurrence, did the Court mention that both Vinson and Taylor were African American, yet race is surely an element of the social context in which the story unfolded. It must have taken great courage for Mechelle Vinson, a young woman of color, (as were Sandra Bundy and Paulette Barnes), to bring accusations against her supervisor. Katharine Bartlett et al note that formal complaints are the least likely response to sexual harassment.45 Women are more likely to suffer in silence or to leave the job altogether. As Tanya Kateri Hernandez writes, women of color are even less likely to report sexual harassment for several reasons. They may be in a precarious economic position and feel there are higher barriers and fewer options for finding a new job. They may also distrust the complaint procedures created by their employers and, as in the case of Vinson, they may hesitate to report sexual harassment when the perpetrator is African American.46 Race, as well as class and age, are important qualities to consider in any discussion of sexual harassment. These factors help to explain why consent is not an “appropriate barometer” of whether sexual contact is permissible or whether it is illegal. Relationships between supervisors and subordinates are “inherently hierarchical”47 and reflect inequality in the larger society. The power imbalance does not stem entirely from titles at work. There are also imbalances between older and younger, educated and less educated, male and female. All of these relationships are even more complicated when race is added as a factor. Even though both Vinson and Taylor were African American, the power dynamics at the bank reflected their age, education, and gender hierarchy.48
But if consent is an unreliable indicator of the existence of sexual harassment, is welcomeness a better guide? Is offensive behavior ever welcome? Courts have found that racial harassment is always unwelcome, even when the target puts up with it for survival. Why in cases of sexual harassment is it up to the victim to establish that the conduct is not welcome and why are her dress and speech relevant to that determination? Why does the inquiry into sexual harassment focus on the victim’s response and allow men to abuse their authority unless a woman says “no”? Implicitly, when Rehnquist wrote that evidence of a “complainant’s sexually provocative” speech and dress is “obviously relevant” in determining the nature of sexual advances and the context in which they occurred,”49 he was opening the door to arguments that the victim solicited or invited the offensive ←29 | 30→behavior. Hernandez argues that considering the victim’s clothing or her conversation embedded “historical presumptions about the wantonness of Black Women into legal doctrine.” Attention to such factors contributes to stereotyped notions that Black Women are sexually available. Furthermore, the Court’s acceptance of the relevance of speech and dress means that all sexual harassment victims are burdened with the need to refute the claim that they actually provoked the advances.50 As with other crimes against women, attention focuses on the behavior of the plaintiff, rather than on the aggression of the defendant. Because of fear that she may be humiliated by such inquiries, a woman who experiences sexual harassment is faced with a “cruel trilemma.” She may endure it, she may attempt to oppose it, or she may leave her job.51 For workers with limited skills or education, for those who are responsible for supporting others, the only real option is endurance.
Willingness to consider a woman’s appearance allows for an analysis of sexual harassment that suggests it is behavior arising from sexual desire, rather than from an assertion of power. It implies that harassment is sometimes welcomed by some women and miscasts women’s sexuality to indicate that any manifestation of sexuality means that she is “fair game,” available to any man.52 Furthermore, an inquiry into a woman’s participation in conversations about sex may lead a court to conclude that if she talks about her experiences, she is immune to sexual harassment, or if she has not been offended by some off color jokes or banter, she won’t mind inappropriate personal advances.53 Such considerations fail to take into account that vulgar speech may be a survival strategy in a largely male environment. The very idea that clothing or conversation is an invitation to sexual harassment reinforces racial and gender stereotypes and makes the victim’s behavior rather than the perpetrator’s actions the focus of the inquiry.54 It also fails to recognize that the definition of “provocative” is subjective. An elderly judge might find clothing seductive when to a younger person it is simply fashion. Evaluating clothing and speech takes the decision about whether or not harassment has occurred out of the hands of the women and places it into the hands of the court. Such inquiries would never be acceptable in a case of discrimination based on race, religion, or national origin.55 It is impossible to imagine victims of any of those forms of discrimination being asked in court if they had provoked their harasser. Gwendolyn Mink argues that allowing evidence of past sexual conduct, dress, or speech is a form of casuistry—clever but unsound reasoning. She offers an alternative way to ←30 | 31→decide whether harassment had occurred. If a woman complains, the conduct was offensive, and if she was offended, she was harassed. Such a test might not be enough to merit a legal remedy, but it would suffice to show that she had suffered.56
Although the Supreme Court did not mandate that future courts consider evidence of dress and speech, many have done so, even though the process of gathering such material may be humiliating for the victim. They have allowed discussion of a target’s experiences, photographs, even their children’s paternity—all of which can be tortuous for a plaintiff. It may certainly discourage her from reporting sexual harassment, just as such practices in the past discouraged rape victims from coming forward knowing that their conduct would be on trial. What is the point of these inquiries into a victim’s sex life that may not even include the defendant? Should courts assume that if she slept with one employer or colleague she would welcome the advances of another?57 Clearly in Vinson, the Supreme Court based some of its holding on ideas that discourage sexual harassment victims from reporting. If women feel they will be humiliated, made to feel guilty and responsible for their harasser’s behavior, they will not be inclined to make a complaint.
The other area where the Vinson opinion left many questions concerns employer liability. During oral arguments in the case, Justice Sandra Day O’Connor (the only woman on the Court at the time) questioned the bank’s attorney. The bank wished to argue that employers were responsible only if employees suffered tangible losses as a result of harassment. In other words, if a victim were fired or demoted in a quid pro quo incident, the employer would have a financial liability. Otherwise they would not. Justice O’Connor asked if the principle was the same in cases of racial harassment. Although the bank’s lawyer argued that the policy should be similar, in fact employers are liable in cases of racial harassment even where there is no tangible result.58 In its deliberations, the Court was divided on the question of employer liability. Some, like O’Connor (and Marshall, Brennan, Blackmun, and Stevens in the concurrence) wanted to uphold the Court of Appeals’ ruling that employers were liable for hostile environment harassment. If employers had a financial responsibility, they would be more likely to address the problem. Women by themselves could not police the workplace without support from management. However, in the final opinion, O’Connor did not sign onto the concurrence but joined the majority who ruled ambiguously that employers were not automatically liable if supervisors engaged in sexual harassment. It is possible that O’Connor decided to vote with the majority in order to get a unanimous ←31 | 32→ruling in the case and to leave the question of liability to be settled at a later date.59 Joan Hoff writes that the Vinson Court was able to be unanimous by avoiding the liability issue but in doing so they gave employers reasons to avoid or condone sexual harassment.60
Whatever the explanation, the unresolved issue of employer liability meant that sexual harassment was relegated to a secondary level of protection under Title VII. If employers were always liable for racial harassment by employees but only sometimes liable for sexual harassment, the Court seemed not to recognize that employers were best situated to eliminate the latter problem.61 It is supervisors (agents of employers) who generally control the day-to-day environment in which people work. They are the ones who can alter the conditions of employment as mentioned in Title VII. And yet if employers can avoid financial responsibility for their failure to create a safe and nondiscriminatory workplace, what is the incentive to make improvements?
How Revolutionary was the Vinson Case?
Hernandez summarized the significance of Meritor Savings Bank v. Vinson. It was, she wrote, only a partial triumph for women in the workplace. It allowed hostile environment claims, but set a high bar for them. It left employers generally protected from liability, and it allowed a definition of “welcomeness” that permitted analysis of a victim’s dress and speech.62 Hoff argues that the case had “no redistributive or fundamentally unsettling economic or moral impact on American society—continuing the standard pattern of gender-related cases.”63 In her view, its power was more symbolic than practical.
It may be true that Vinson did not get at the root of the problem of sexual harassment, even less at the roots of gender discrimination. The Court did not grapple with the idea that sexual harassment was not really about sexual attraction but that it is an exercise of power based on assumptions about what it means to be a man or a woman. On the other hand, every effort to bring about social change requires a foundation—a recognition that legal protections exist and that certain behaviors are prohibited. Vinson left many questions unanswered and many harms without remedies, but it did provide the Court’s ruling that sexual harassment is a form of discrimination based on sex prohibited by Title VII of the Civil Rights Act of 1964. Future cases would build on that foundation.
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Notes
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1. 1Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
2. 2Gillian Thomas. Because of Sex: One Law, Ten Cases, and Fifty Years that Changed American Women’s Lives at Work (New York: St. Martin’s Press, 2016), 86. Carrie M. Baker, The Women’s Movement Against Sexual Harassment (New York: Cambridge University Press, 2008), 63.
3. 3Catharine A. MacKinnon. Women’s Lives. Men’s Laws (Cambridge, MA: Belknap Press, 2005), 185.
4. 4Fred Strebeigh. Equal: Women Reshape American Law (New York: W.W. Norton & Company, 2009), 216–7.
5. 5Baker, Women’s Movement, 111–5.
6. 6Quoted in Lori A. Mazur, “Harris v. Forklift Systems, Inc.: Keeping the Status Quo,” Rutgers Law Review 47 (1994), 306.
7. 7Baker, Women’s Movement, 117.
11. 11Tanya Kateri Hernandez, “ ‘What Not to Wear’—Race and Unwelcomeness in Sexual Harassment Law: The Story of Meritor Savings Bank v. Vinson” in Women and Law Stories, Elizabeth M. Schneider and Stephanie M. Wilman, eds. (New York: Foundation Press, 2011), 288.
12. 12Quoted in Strebeigh, Equal, 256–7.
16. 16Quoted in Victoria T. Bartels, “Meritor Savings Bank v. Vinson: The Supreme Court’s Recognition of the Hostile Environment in Sexual Harassment Claims,” Akron Law Review 20 (1987), 577.
19. 19Much of the description of Vinson’s case in the Federal District Court is taken from Augustus B. Cochran III, Sexual Harassment and the Law: The Mechelle Vinson Case (Lawrence, KS: University Press of Kansas, 2004), Chapter 3.
20. 20A number of sources detail Vinson’s claims about Taylor’s harassment. In addition to Cochran, one can consult Baker, Women’s Movement, 162–3; Strebeigh, Equal, 259–66.
21. 21Meritor Savings Bank v. Vinson
22. 22Descriptions of the Court of Appeals ruling, Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985) are included in Strebeigh, Equal, 274–6; Cochran, Sexual Harassment and the Law, 82–6; Baker, Women’s Movement, 164.
23. 23Quoted in Cochran, Sexual Harassment and the Law, 82.
27. 27Meritor Savings Bank v. Vinson.
28. 28Thomas, Because of Sex, 98.
29. 29Baker, Women’s Movement, 165.
30. 30Patricia J. Barry and Catharine A. MacKinnon, Brief of Respondent Mechelle Vinson in Meritor Savings Bank v. Mechelle Vinson, February 11, 1986, in Catharine A. MacKinnon, Butterfly Politics (Cambridge, MA: Belknap Press, 2017), 65.
35. 35Meritor Savings Bank v. Vinson.
44. 44Cochran, Sexual Harassment and the Law, 126–7.
45. 45Katharine T. Bartlett, Deborah L. Rhode, Joanna L. Grossman, and Samantha L. Buchalter, Gender, Law, and Policy (New York: Walters Kluwer, 2014), 312.
46. 46Hernandez, “What Not to Wear,” 295.
48. 48Angela Onwuachi-Willig, “Judgment: Meritor Savings Bank v. Vinson,” in Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, Feminist Judgments: Seventeen Opinions of the United States Supreme Court (New York: Cambridge University Press, 2016), 312.
49. 49Meritor Savings Bank v. Vinson.
50. 50Hernandez, “What Not to Wear,” 280.
51. 51Christina A. Bull, “The Implications of Admitting Evidence of a Sexual Harassment Plaintiff’s Speech and Dress in the Aftermath of Meritor Savings Bank v. Vinson,” UCLA Law Review 41 (1993), 149.
54. 54Onwuachi-Willig, “Judgment,” 317–9.
55. 55Grace Dodier, “Meritor Savings Bank v. Vinson: Sexual Harassment at Work,” Harvard Women’s Law Journal 10 (1987), 220.
56. 56Gwendolyn Mink, Hostile Environment: The Political Betrayal of Sexually Harassed Women (Ithaca, NY: Cornell University Press, 2000), 68–9.
57. 57Bull, “The Implications of Admitting Evidence,” 125–35.
58. 58Linda Hirshman, Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World (New York: Harper Collins, 2015), 165.
60. 60Joan Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women (New York: New York University Press, 1991), 434.
61. 61Colleen M. Davenport, “Sexual Harassment under Title VII: Equality in the Workplace or Second Class Status: Meritor Savings Bank v. Vinson,” Hamline Law Review 10 (1987), 221–2.
62. 62Hernandez, “What Not to Wear,” 292.
63. 63Hoff, Law, Gender, and Injustice, 255.
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Onwuachi-Willig, Angela. “Judgment: Meritor Savings Bank v. Vinson,” in Feminist Judgments: Seventeen Opinions of the United States Supreme Court, edited by Kathryn M. ←35 | 36→Stanchi, Linda L. Berger and Bridget J. Crawford. New York: Cambridge University Press, 2016.
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Thomas, Gillian. Because of Sex: One Law, Ten Cases, and Fifty Years that Changed Women’s Lives at Work. New York: St. Martin’s Press, 2016.
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