href="#ulink_7904b2de-7871-5ac5-899e-dca8854e3160">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 courts were negating the seriousness of claims of sexual harassment, other government agencies and branches were beginning to grapple with the issue. In Congress, the House Subcommittee on Investigations of the Post Office and Civil Service Committee looked into sexual harassment in federal agencies. Women’s organizations and feminist activists testified to the prevalence of sexual misconduct. Eleanor Holmes Norton, the Director of the EEOC, presented the committee with data about the history and pervasiveness of the issue. She argued that the federal government needed to set the tone that would make sexual harassment unacceptable in any workplace.5
The EEOC issued its first set of guidelines defining sexual harassment as a form of discrimination in 1980. They stated that “unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature constitute sexual harassment when … such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.”6 Under EEOC guidelines, employers would be strictly liable for any such acts by supervisory employees and liable for the acts of others if “employers knew or should have known of the harassment and failed to take immediate and appropriate corrective action.”7 Responses to the guidelines came from all sides. Employers argued that they should not be responsible for personal problems that developed between male and female employees. Some feminists applauded the EEOC’s efforts and promoted the view that sexual harassment was a violation of women’s civil rights as it impaired their participation in the workforce. Other feminists were skeptical of any government involvement in defining the problem, fearing that such an approach would be legalistic, bureaucratic, and individualized and would not lead to a needed social transformation. Some believed that any progress on the issue needed to be controlled by women and not enmeshed in the political process.8 Indeed, political changes—the election of Ronald Reagan in 1980 and the advent of a more conservative administration—did lead to regression in policies related to civil rights in general and sexual harassment in particular. Reagan cut the budget of the EEOC and appointed Clarence Thomas as its director. Republican-appointed conservative judges overruled EEOC guidelines in the area of employee liability, refusing to punish “innocent” employers for their employees’ behavior. Accused men attempted to file lawsuits for defamation. Although these lawsuits generally failed, most likely they discouraged women ←19 | 20→from making complaints.9 In conservative publications, articles made the same arguments about sexual harassment that had often been made about rape. It was an individual problem motivated by sexual desire (not a social issue) motivated by power; women were often responsible because of the way they dressed or spoke; many women made false charges especially if romances went wrong; poor innocent men were confused about what was permissible behavior.10 Against this background where momentum to protect women from sexual harassment seemed to be waning, it was fortunate that Judge Spotswood Robinson of the Federal Court of Appeals for the District of Columbia presided over the court that would hear several of the landmark cases establishing sexual harassment as a form of discrimination on the basis of sex.
Judge Robinson spent most of his career working in the area of civil rights law. Before being appointed to the federal bench, he had been a member of the national Commission on Civil Rights, an attorney for the NAACP in the era of Brown v. Board of Education, and served as Dean of Howard Law School, known for graduating scores of civil rights attorneys. He had no difficulty in seeing the similarities between racial harassment and sexual harassment. He was especially sensitive to the experience of African American women and the “damaging influence of racialized sexual stereotypes.”11 Thus when in 1977 Judge Robinson wrote the opinion in Paulette Barnes’s case before the D.C. Court of Appeals, he rejected the lower courts conclusion that Barnes was demoted “not because she was a woman but because she refused to engage in sex with her supervisor.” He stated that “We cannot accept this analysis … But for her womanhood, from aught that appears, her participation in sexual activity would never have been solicited.”12 In other words, Robinson refused to parse the situation to separate Barnes’s sex—woman—from her gender—a target of her boss’s sexual advances. He went on to state, “To say, then that she was victimized in her employment simply because she declined the invitation is to ignore the asserted fact that she was invited only because she was a woman subordinate to the inviter in the hierarchy of agency personnel …. Thus gender cannot be eliminated from the formulation … and that formulation advances a prima facie case of sex discrimination within the purview of Title VII.”13 Here one can find Robinson’s sensitivity to discrimination in the workplace as it contributes to and perpetuates inequality. If the point of Title VII is to reduce and eliminate discrimination based on sex, and if harassment both evidences and enhances that discrimination, then sexual harassment must be prohibited by Title VII. Judge Robinson’s understanding of Barnes’s case as well as his subsequent rulings changed the focus from the victim (what ←20 | 21→did she do to attract sexual attention?) to the harasser (what did he do to negatively affect her work environment?). The shift in focus would be critical in future understanding of sexual harassment, yet courts would not apply it consistently.
Robinson participated in a three-judge panel that issued another significant opinion in 1980 in the case of Sandra Bundy, an employee of District of Columbia Department of Corrections. Bundy had been subjected to what the lower court called “improper sexual advances” that were “standard operating procedure, a fact of life,
