Sexual Harassment in the United States. Mary Welek Atwell

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