Sexual Harassment in the United States. Mary Welek Atwell

38. 38Catharine MacKinnon, “Brief for Respondent Mechelle Vinson,” Butterfly Politics, 65.

39. 39MacKinnon, Butterfly Politics, 3.

40. 40Ibid, 57–8.

41. 41Ibid, 16–8.

42. 42Gwendolyn Mink, Hostile Environment: The Political Betrayal of Sexually Harassed Women (Ithaca, NY: Cornell University Press, 2000), 52–3.

43. 43MacKinnon, Directions in Sexual Harassment Law, 674–5.

44. 44MacKinnon, Butterfly Politics, 19–20.

      Bibliography

      Baker, Carrie N. The Women’s Movement Against Sexual Harassment. New York: Cambridge University Press, 2008.

      Cochran III, Augustus B. Sexual Harassment and the Law: The Mechelle Vinson Case. Lawrence, KS: University of Kansas Press, 2004.

      Crawford, Bridget J., Kathryn M. Stanchi, and Linda L. Berger. “Feminist Judging Matters: How Feminist Theory and Methods Affect the Process of Judgment.” University of Baltimore Law Review 47 (2018), www.digitalcommonspace.edu/lawfaculty/1089

      Hoff, Joan. Law, Gender, and Injustice. New York: New York University Press, 1991.

      Kessler-Harris, Alice. Out to Work: A History of Wage-Earning Women in the United States. New York: Oxford University Press, 2003.

      MacKinnon, Catharine A. Butterfly Politics. Cambridge, MA: Belknap Press, 2017.

      MacKinnon, Catharine A. and Reva B. Siegel, eds. Toward a Feminist Theory of the State. Cambridge, MA: Harvard University Press, 1989.

      MacKinnon, Catharine A. and Reva B. Siegel, eds. Only Words. Cambridge, MA: Harvard University Press, 1993.

      MacKinnon, Catharine A. and Reva B. Siegel, eds. Directions in Sexual Harassment Law. New Haven, CT: Yale University Press, 2004.

      MacKinnon, Catharine A. and Reva B. Siegel, eds. Women’s Lives. Men’s Laws. Cambridge, MA: Belknap Press, 2005.

      Mink, Gwendolyn. Hostile Environment: The Political Betrayal of Sexually Harassed Women. Ithaca, NY: Cornell University Press, 2000.

      Saguy, Abigail. What Is Sexual Harassment? From Capitol Hill to the Sorbonne. Berkeley: University of California Press, 2003.

      Strebeigh, Fred. Equal: Women Reshape American Law. New York: W.W. Norton & Company, 2009.

      ←16 | 17→

· 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.

Before Vinson

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