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
