Linda Hirshman is author of the new book “Reckoning: The Epic Battle Against Sexual Harassment and Abuse.”
The Supreme Court usually saves the biggest decisions for the end of its term. So it was June 19, 1986, when Associate Justice William H. Rehnquist took the mic to announce the decision in Meritor Savings Bank v. Vinson, the landmark case that recognized sexual harassment as a violation of the Civil Rights Act.
Rehnquist’s appearance was ominous; no one would have expected the most conservative judge on the Supreme Court to be writing the opinion in favor of a sweeping new interpretation of Title VII of this most liberal of laws. And yet, it seemed, that’s exactly what Rehnquist was doing. From that day on, sexual harassment severe enough to create a hostile work environment would be treated as a violation of the Civil Rights Act. Mechelle Vinson, the courageous black woman at the heart of the lawsuit who had endured years of sex abuse from her supervisor at a bank in the nation’s capital, could pursue her claim.
And yet, there was a catch, thanks precisely to Rehnquist being the one writing the opinion: Vinson’s effort to hold her employer accountable would not result in holding employers strictly liable for sex abuse, the way they were held accountable for discrimination. Instead, Rehnquist carved out an exception for abuse that would continue to make harassment claims difficult to pursue, a big defeat that explains a lot about why the #MeToo movement was necessary more than 30 years later.
At the time, the ruling appeared to be a great victory resulting from a sad story. When Vinson saw the little branch of Capital City Federal Savings Bank in her neighborhood growing up, she thought of it as a haven of order and harmony. She was so excited when, in 1974, she turned 19, and the manager, Sidney Taylor, let her apply to be a teller trainee.
The tides turned the day she passed her probationary period, when Taylor took her to dinner and told her she had to have sex with him — have sex, let him fondle her and look at the pornography he shared with the women at the branch to “relax” them — these were conditions of her employment. In 1978, after four years of enduring his sexual abuse in this hellish workplace, Vinson took sick leave, and Taylor fired her for being absent.
Vinson sued. But she lost at trial. In a stunningly humiliating and incoherent opinion, the trial judge found that Taylor didn’t do the things Vinson described and, anyway, she had “asked for it.”
The trial judge wouldn’t even give the impoverished plaintiff a pro bono transcript, ruling that the case didn’t involve any important issues. Even after a panel of the Court of Appeals reversed him and the Supreme Court eventually granted review, Vinson still didn’t have a proper transcript. While she waited for the court’s decision, she was so poor that she had to drop out of nursing school and deliver newspapers to put food on the table.
But Vinson had a secret weapon. Once the court took review, someone figured out they had better beef up her legal team. On the other side of the country, in a cabin with no computer or many law books, was the woman who first realized that sexual harassment was a civil rights violation. Law professor Catharine MacKinnon took on Vinson’s case.
Nearly a decade after Vinson was fired from Meritor Savings Bank, the Supreme Court decided that what her manager did was, in fact, illegal. Taking a leaf from cases centered on racial discrimination, the court held that the Civil Rights Act protected against emotional or psychological damage. Accordingly, creating a workplace “charged with” discrimination violated the law, just as surely as purely economic discrimination did.
Thirty years later, almost to the day, Fox News anchor Gretchen Carlson sued the network’s chief executive, Roger Ailes. She would have been much better off at work, he had told her, if she had had sex with him. Given that it was 2016, Carlson had “the receipts” in the form of recordings on her iPhone. In the tsunami of charges and scandals that followed Carlson’s lawsuit filing, no one zeroed in on why Ailes’s open and shameless harassment was still going on 30 years after the Meritor decision.
Why was Meritor so ineffective at stopping this type of harassment?
The answer traces back to Chief Justice Warren Burger’s decision to assign the opinion to, by far, the most conservative justice serving on the court: Rehnquist. Liberal justices held their breath.
When Rehnquist circulated his first draft to the court, the four liberal justices — William Brennan, Harry Blackmun, John Paul Stevens and Thurgood Marshall — found they were right. Rehnquist had picked up the arguments of the new Equal Employment Opportunity Commission chief, Clarence Thomas, which the Justice Department had presented as an amicus brief. Maybe women could sue the harasser, the Reagan administration argued, but they shouldn’t be allowed to sue the boss. Rehnquist agreed.
What made this line of reasoning so odd is that Rehnquist only let the employer off in cases of hostile environment sex claims. All the other civil rights claims — race discrimination, quid pro quo sex discrimination — would continue to ensnare the employer, as well as the perpetrator. Just not sex. One might have been justified in thinking Rehnquist really didn’t want to help women complaining about their hellish places of work after all.
Led by Marshall, the four liberal Justices balked, refusing to sign on to Rehnquist’s opinion. Rehnquist’s three most conservative colleagues, Burger, Lewis Powell and Byron White, saw no problem with the draft opinion. That split the court 4 to 4, turning all eyes to Justice Sandra Day O’Connor, now the swing vote. After all, she was the first woman on the Supreme Court, or the “FWOTSC” as she slyly called herself.
Within days, she had signed on to Rehnquist’s opinion, letting the employers off the hook.
While the ink was still wet on Vinson’s hard-won victory, employers all over the country began searching for the safe harbor they would sail into when sued for harassment. They drew up virtuous-sounding policies and started training programs no one would attend, or which would be the butt of endless workplace humor and resentment. The modern human resources department came alive. As Carlson’s lawyer, Nancy Erika Smith, put it, “well-trained people in human resources understand their job as being to protect the company and its powerful executives no matter what.”
When the media finally broke the story of serial harasser Harvey Weinstein a year after Carlson sued Ailes (and 31 years after Meritor v. Vinson), the world learned that even the Weinstein Brothers had an insidious HR department. Weinstein Human Resources, reporter Ronan Farrow revealed in an expose, was the place “where you went when you didn’t want anything to get done.” These professionals did everything humanly possible to avoid knowing about the hostility of the work environments their valued male supervisors had created, the report said. At Weinstein, human resources funneled their information back to ... Harvey Weinstein.
The conventional wisdom among legal scholars is that strict liability for sexual harassment should motivate employers to take steps to stop it, especially because employers are in the best position — certainly better than some helpless bank teller dependent upon her salary for food — to deter the bad behavior. Motivated by strict liability, the thinking goes, employers will make an effort to find out about prospective employees’ reputations and convince their current roster that harassment will result in discharge.
But thanks to Meritor, strict liability is not what we have. And while we have an endless stream of sexual harassment training seminars, we’ve had much less success stemming the tide of harassment.
It’s been 33 years since the Supreme Court recognized a civil rights action for making the workplace a living hell. Imagine what might have happened in those decades, if employers had been strictly liable for the acts of the people they hire. We might soon see: Now that the media has blown the whistle on the corrupt and harmful regimes of sexual abuse common in the American workplace, some states are considering changing their state laws to impose the strict liability O’Connor’s swing vote excluded from federal law. Tellingly, lawyers are starting to publish articles warning their clients of their increased exposure under beefed-up laws.
And now, 33 years after Vinson’s bittersweet victory, #MeToo.