Sisters in Law (22 page)

The resistance is understandable. Redefining even some workplace sex as illegal harassment was one of the most powerful social changes in the history of legal feminism. Foundational concepts of human identity—women as sexual temptresses, men as hardwired sexual predators, sexuality as incompatible with social
equality—were at issue when the first administrative assistant sued her boss.

Hearing the stories, a student at Yale Law School, Catharine MacKinnon, began to develop a theory to address the emerging issue. As she saw it, the courts missed the civil rights implications of sexual harassment because there were no comparable male targets of the (straight) male bosses' desires. So the employers weren't discriminating on the grounds of gender, the judges said. What the judges missed, she thought, was that sexual harassment discriminated against working women regardless of the existence of comparable male victims, because it disparaged them. Just as racially segregated schools could never be equal because their goal was always to keep members of the subordinate group down.

Finally, in 1976, the D.C. Circuit issued the first ruling in favor of a female employee. Judge Spottswood Robinson, a legend of the racial civil rights movement, thought it was an easy case. The supervisor had solicited the plaintiff, Paulette Barnes, to have sex with him. So what if he didn't hit on all women? “But for her womanhood, from aught that appears, her participation in sexual activity would never have been solicited.” When she refused, she was driven out of her job. Accordingly, it was sex discrimination under the Civil Rights Act. Deliciously, Catharine MacKinnon's father, the conservative Nixon appointee Judge George MacKinnon, was on the panel in that first case.

In hindsight, the Barnes case was an easy call. The court did not have to understand Catharine MacKinnon's theory of disparagement to find a simple case of disparate treatment. All it had to do was let go of the nonsensical notion that discrimination is only what is done to every woman in the picture (and no men). Being a woman was
necessary
to being treated badly, in the sex-harassment cases, even if it was not sufficient. Put another way, every woman was vulnerable to such treatment, even if they were not all “attractive” enough to be so lucky. Accordingly, the behavior qualifies as sex discrimination.

But even as the D.C. Circuit was deciding the first, easy case, the harder case was ineluctably making its way to the Court. Does
sexed treatment of women in the workplace without any other harmful job action still violate the Civil Rights Act? For that case, MacKinnon's insight into the disparagement and subordination of women was essential.

HE'S GLAD TO SEE YOU
AND
IT'S A GUN IN HIS POCKET

When Mechelle Vinson, an aspiring young woman in the Baltimore ghetto, saw the little local bank in her neighborhood, it looked to her like a beacon of opportunity, a way out of her impoverished, dead-end life. As Vinson would later tell a court, during her probationary period as a trainee teller with the bank, her supervisor, the manager Sidney Taylor, “invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sexual relations. At first she refused, but her boss had a gun in his pocket: her job. Fearing losing her job, she eventually agreed.

“Taylor thereafter made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, respondent testified that Taylor fondled her in front of other employees, followed her into the women's restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions.” When Taylor fired Vinson, allegedly for unrelated reasons, she sued.

In February 1980 Vinson lost her case at trial. But then she got a huge break. Two weeks after the trial court decision, the EEOC recognized that sexual harassment of this sort was not just good fun: it was illegal job discrimination. Here's where MacKinnon's insight came in. Taylor's behavior wasn't just flattering or natural, it was discriminatory subordination and disparagement of his employee. The court of appeals sent the case back for a new trial under this new interpretation of the Civil Rights Act. The bank appealed the order, called a “remand,” to the Supreme Court. Caught in the changing law, the bank was arguing that even if Vinson's version was true, she hadn't suffered in her work—by being fired
or demoted—so she had no claim. In the alternative, the bank argued, she should not be suing the bank. Her real gripe was with Taylor. How was the bank to know about his alleged little sexual fiefdom in an obscure branch?

At oral argument, Justice O'Connor took the bank's lawyer, F. Robert Troll, Jr., in her jaws and shook him like a terrier shakes a rat:

SOC: “The trial court simply didn't handle the case as a . . . a sexual harassment . . . claim?”

Troll admitted the trial court had embraced a now-outdated understanding of the Civil Rights Act, which would not have recognized the wrong done to Vinson.

“Do you agree then,” O'Connor pursued, “that today that could be a valid claim under Title VII?”

Troll asserted that the federal law protected people only against loss of tangible job benefits. Vinson's firing was unrelated to the abuse, he argued.

“I notice,” she replied, that “the solicitor general suggests that there is a claim” for “the suffering that occurs in the hostile environment itself.”

Troll begged to differ with the lawyer for the United States. He was on thin ice here, because it was settled law that racial harassment—Klan signs on peoples' lockers, the N word, et cetera—was actionable regardless of whether the black person got fired. The experience of harassment was enough.

This fact informed O'Connor's next question. Knowing the answer in advance, she asked, “Would you say that if it were a racially harmful environment claim that a tangible effect on employment is a necessary element?”

Troll admitted that “reasonable people could differ” about his position that Vinson had to suffer actual job penalties to have a claim. Congress had said nothing about people's psychological suffering, he ventured.

O'Connor did not blink: “Do you think the principles are similar in sex harassment as racial harassment?”

“Yes,” Troll conceded, “we do.”

Having basically admitted that Vinson had a claim, he argued
that she had the wrong defendant. The bank still was not liable, because it had no idea what was going on.

O'Connor: “The lower court cases on racial harassment imputes the supervisor's knowledge to the company.”

And it was the
supervisor
who was doing the harassing, she continued
.
Wasn't it the supervisor's job to care for the employees, O'Connor asked? He knew what he was doing. Wouldn't that be notice to the bank?

The listener can almost hear the bank's advocate panting on the recording of the oral argument by the time she finished with him.

When the time came, Justice O'Connor joined a unanimous court to hold that Vinson should have another chance to prove the harassment, which would be actionable, if proved, even if she didn't get fired because of it. Harassment that creates a hostile work environment, unheard of ten years before, was now ensconced firmly in the prohibitions of the Civil Rights Act. That was the easy part. What divided the Court was the question of whether the bank was strictly liable for its supervisor's harassment of the underling. Whether the big boss is liable in cases like this is usually what matters. If sexual harassment were ever going to stop, employers would have to stop it. If they were strictly liable, they'd do something to control sexual harassment in their workplace. Ambitious, frightened, vulnerable women could not police the workplace and the jerk at the branch office was unlikely to be able to pay meaningful damages.

Events followed a course drearily familiar to the liberals on the Burger Court. First, Chief Justice Burger switched his vote from supporting the bank at conference when he saw that only one of the other justices, Powell, agreed with him. Then, being in the majority, he got the right to assign the opinion. He assigned it to the justice in the majority least sympathetic to Vinson, William Rehnquist. On April 22, Rehnquist circulated a draft opinion so hostile to Vinson that even Justice Powell abandoned his dissent and agreed to sign on.

Although Vinson would get a chance to prove harassment, unlike employers in racial harassment cases, the bank would not be
strictly liable. Vinson would have to prove the bank was liable under “ordinary principles of agency,” a complex body of law about when employers are responsible for the acts of their agents, depending on what the employer knew or should have known about what the employee was doing. So in a case like Vinson's she would have to show the bank knew about Taylor's bizarre behavior, which would be almost impossible to prove. Or she could show that the bank had an obligation to monitor its employees in some way so that it would know when something so untoward was going on. Since sexual harassment was just being acknowledged as an offense, what the courts would say employers “should have known” was completely, well, unknown. Either way, her chance of winning would be much smaller than if the law just laid the burden of misbehavior strictly on the employer, the institution with the best chance to stop it.

Predictably, the four liberal justices—Brennan, Marshall, Blackmun, and Stevens—withdrew their support from Rehnquist's opinion. They thought the bank should be liable to its female employee if she was sexually harassed in the workplace, period. Justice Marshall wrote an opinion he characterized as concurring only in the actual judgment, as far from agreement as you can get while still supporting the Court's remanding Vinson's case for a new trial. Four to four: all eyes turned to Sandra Day O'Connor. Two weeks later she voted with Rehnquist, making five to limit sexual harassment claims against an employer. Vinson would have to prove not only that Taylor harassed her, but that the bank knew or should have known she was being harassed. Certainly the bank wasn't going to volunteer to help her out. As of 1986, seven years after Vinson sued, Sidney Taylor was still managing the branch.

O'Connor's clerk at the time, Stephen Gilles, speculates that she may have had a complicated and clever agenda in voting with the conservatives. “Maybe she thought that this case is so awful, even the conservatives are willing to buy into the theory of sexual harassment, but if I switch sides and vote with the liberals, they might write a few concurrences, and [it will be harder to] hold a coalition together.” If the conservatives dissented,
Meritor Savings Bank v.
Vinson
would have been 5–4, rather than unanimous on the harassment matter. A 5–4 decision establishing sexual harassment as actionable would then be very vulnerable if any one of the liberal justices retired, just like
Roe
began to hang by a thread over the years. Better a unanimous Court for sexual harassment and let the liability thing play out over the future.

In the end, like so many of Justice O'Connor's tightfisted votes for equality, the decision
did
help women—in a tightfisted way. From the highest level of judicial authority, sexual harassment was now actionable, as racial harassment had been in the past, even if the offender just made the victim's daily life a misery rather than, say, firing her. The bank settled with Mechelle Vinson, and she used some of the money to go to nursing school and had a long good life. Years later, in 1988, Sidney Taylor was convicted of embezzlement from one of the bank's depositors, and, finally, the bank noticed him, and he lost his job. Burger was retiring, and Justice Rehnquist, who, gossip had it, did not want to be seen as defending sexist behavior just as he was up to replace Burger for the job of chief, got to be in the majority. But the lower courts struggled for years to figure out what an employee had to prove in order to hold an employer liable in a pure sexual harassment case under “principles of agency law.” One case, heard by all eleven judges of the court of appeals in Chicago, generated eight different opinions! Please, Justice O'Connor, what should we be doing?

Right before Warren Burger retired, O'Connor's angel, John Driggs of the Lake Powell houseboat trip, came to D.C. with his wife to visit the O'Connors. As they were sitting at breakfast, Justice O'Connor was getting ready to go to work. Say, she said to her guests, would you like to go to the Court and see a session? Who would say
no
? As they sat in their seats in the justices' guest section, a messenger arrived with a note from the chief inviting them to come to his chambers after the session. When the Driggses arrived, Chief Justice Burger was waiting to crow over the great outcome of their houseboat trip all those years before. What an addition Justice O'Connor made to the court, he said. Why, he made it his business to use his powers as the chief to single her out to write the opinions in
really important cases because he thought so highly of her. It was an extraordinary admission from Burger, who had long been accused of manipulating the assignment power, in violation of the unspoken norms of the institution he headed. Only thing is: it wasn't true. Even after five years on the tribunal, and numerous instances where the chief unexpectedly changed his position when he saw he would be on the losing side, Burger never assigned O'Connor to write the Court's opinion in any big cases. As one of her clerks said sarcastically, remembering those years, “Oh, boy, another tax case! Thanks, Justice Burger.” In 1986, William Rehnquist took the retiring Warren Burger's place, and President Reagan filled the Supreme Court vacancy with the conservative appeals court judge Antonin Scalia.

FINESSING THE DIVIDE ON AFFIRMATIVE ACTION

Women were always bit players in the affirmative action drama. Affirmative action was the easiest target in the backlash against racial civil rights. By the time Sheriff Bull Connor's Birmingham dogs and fire hoses had consumed the evening news in the mid-'60s, it was hard to find a mainstream voice calling for a return to legal segregation. But social patterns outside the law—residential segregation, job seniority, a legacy of impoverishment dating back to slavery—ensured that most racial segregation survived without the lawman's help.