of speech and dress means that all sexual harassment victims are burdened with the need to refute the claim that they actually provoked the advances.50 As with other crimes against women, attention focuses on the behavior of the plaintiff, rather than on the aggression of the defendant. Because of fear that she may be humiliated by such inquiries, a woman who experiences sexual harassment is faced with a “cruel trilemma.” She may endure it, she may attempt to oppose it, or she may leave her job.51 For workers with limited skills or education, for those who are responsible for supporting others, the only real option is endurance.
Willingness to consider a woman’s appearance allows for an analysis of sexual harassment that suggests it is behavior arising from sexual desire, rather than from an assertion of power. It implies that harassment is sometimes welcomed by some women and miscasts women’s sexuality to indicate that any manifestation of sexuality means that she is “fair game,” available to any man.52 Furthermore, an inquiry into a woman’s participation in conversations about sex may lead a court to conclude that if she talks about her experiences, she is immune to sexual harassment, or if she has not been offended by some off color jokes or banter, she won’t mind inappropriate personal advances.53 Such considerations fail to take into account that vulgar speech may be a survival strategy in a largely male environment. The very idea that clothing or conversation is an invitation to sexual harassment reinforces racial and gender stereotypes and makes the victim’s behavior rather than the perpetrator’s actions the focus of the inquiry.54 It also fails to recognize that the definition of “provocative” is subjective. An elderly judge might find clothing seductive when to a younger person it is simply fashion. Evaluating clothing and speech takes the decision about whether or not harassment has occurred out of the hands of the women and places it into the hands of the court. Such inquiries would never be acceptable in a case of discrimination based on race, religion, or national origin.55 It is impossible to imagine victims of any of those forms of discrimination being asked in court if they had provoked their harasser. Gwendolyn Mink argues that allowing evidence of past sexual conduct, dress, or speech is a form of casuistry—clever but unsound reasoning. She offers an alternative way to ←30 | 31→decide whether harassment had occurred. If a woman complains, the conduct was offensive, and if she was offended, she was harassed. Such a test might not be enough to merit a legal remedy, but it would suffice to show that she had suffered.56
Although the Supreme Court did not mandate that future courts consider evidence of dress and speech, many have done so, even though the process of gathering such material may be humiliating for the victim. They have allowed discussion of a target’s experiences, photographs, even their children’s paternity—all of which can be tortuous for a plaintiff. It may certainly discourage her from reporting sexual harassment, just as such practices in the past discouraged rape victims from coming forward knowing that their conduct would be on trial. What is the point of these inquiries into a victim’s sex life that may not even include the defendant? Should courts assume that if she slept with one employer or colleague she would welcome the advances of another?57 Clearly in Vinson, the Supreme Court based some of its holding on ideas that discourage sexual harassment victims from reporting. If women feel they will be humiliated, made to feel guilty and responsible for their harasser’s behavior, they will not be inclined to make a complaint.
The other area where the Vinson opinion left many questions concerns employer liability. During oral arguments in the case, Justice Sandra Day O’Connor (the only woman on the Court at the time) questioned the bank’s attorney. The bank wished to argue that employers were responsible only if employees suffered tangible losses as a result of harassment. In other words, if a victim were fired or demoted in a quid pro quo incident, the employer would have a financial liability. Otherwise they would not. Justice O’Connor asked if the principle was the same in cases of racial harassment. Although the bank’s lawyer argued that the policy should be similar, in fact employers are liable in cases of racial harassment even where there is no tangible result.58 In its deliberations, the Court was divided on the question of employer liability. Some, like O’Connor (and Marshall, Brennan, Blackmun, and Stevens in the concurrence) wanted to uphold the Court of Appeals’ ruling that employers were liable for hostile environment harassment. If employers had a financial responsibility, they would be more likely to address the problem. Women by themselves could not police the workplace without support from management. However, in the final opinion, O’Connor did not sign onto the concurrence but joined the majority who ruled ambiguously that employers were not automatically liable if supervisors engaged in sexual harassment. It is possible that O’Connor decided to vote with the majority in order to get a unanimous ←31 | 32→ruling in the case and to leave the question of liability to be settled at a later date.59 Joan Hoff writes that the Vinson Court was able to be unanimous by avoiding the liability issue but in doing so they gave employers reasons to avoid or condone sexual harassment.60
Whatever the explanation, the unresolved issue of employer liability meant that sexual harassment was relegated to a secondary level of protection under Title VII. If employers were always liable for racial harassment by employees but only sometimes liable for sexual harassment, the Court seemed not to recognize that employers were best situated to eliminate the latter problem.61 It is supervisors (agents of employers) who generally control the day-to-day environment in which people work. They are the ones who can alter the conditions of employment as mentioned in Title VII. And yet if employers can avoid financial responsibility for their failure to create a safe and nondiscriminatory workplace, what is the incentive to make improvements?
How Revolutionary was the Vinson Case?
Hernandez summarized the significance of Meritor Savings Bank v. Vinson. It was, she wrote, only a partial triumph for women in the workplace. It allowed hostile environment claims, but set a high bar for them. It left employers generally protected from liability, and it allowed a definition of “welcomeness” that permitted analysis of a victim’s dress and speech.62 Hoff argues that the case had “no redistributive or fundamentally unsettling economic or moral impact on American society—continuing the standard pattern of gender-related cases.”63 In her view, its power was more symbolic than practical.
It may be true that Vinson did not get at the root of the problem of sexual harassment, even less at the roots of gender discrimination. The Court did not grapple with the idea that sexual harassment was not really about sexual attraction but that it is an exercise of power based on assumptions about what it means to be a man or a woman. On the other hand, every effort to bring about social change requires a foundation—a recognition that legal protections exist and that certain behaviors are prohibited. Vinson left many questions unanswered and many harms without remedies, but it did provide the Court’s ruling that sexual harassment is a form of discrimination based on sex prohibited by Title VII of the Civil Rights Act of 1964. Future cases would build on that foundation.
←32 | 33→
Notes
←33
