Appeal to a Higher Court
Pat Barry went back to her one-room apartment—she could no longer afford to rent her office in the National Press Building—and began typing. To meet one requirement for an appeal, Barry requested that the district court provide a copy of the trial transcript—and at no charge, since Mechelle Vinson was verging on bankruptcy and entitled to appeal in forma pauperis, as a pauper. Judge Penn denied the request for a transcript on the grounds that he “cannot find this appeal presents a substantial question.”
Here was judicial power. By ruling that his decision had resolved all significant questions, he could prevent issuing the transcript by which his decision could be appealed to a higher court. Barry believed he feared being “exposed for what that trial showed.”
Just as Barry was despairing that she would be unable to appeal, in a remarkable exception, the court of appeals ruled that she could proceed to appeal without the transcript. The exception came at a wretched time for Barry, then almost penniless. On outdated Press Building stationery, she wrote to Vinson asking her to borrow money to order a few bits of the transcript and then followed with a plea: “Unless you can get me $300, I’m afraid I will have to withdraw from the case. . . . I have hit rock bottom.”
At bottom or not, Barry kept typing. She submitted her brief to the court of appeals. She got it in late, with a typo here and an omission there, but she got it in. It contained, particularly on the topic of Barry’s attempt to introduce evidence concerning the bank’s sexually hostile environment, an odd mix of legal argument and personal memoir. “Prior to trial,” she wrote, Judge Penn’s court
gave no hint that it would not permit such evidence. . . . Thus, the plaintiff was taken completely by surprise when the Court ruled . . . that no pattern and practice would be permitted.
Testimony by Christine Malone and others, Barry told the court of appeals, “would have established the poisoned atmosphere created by Taylor . . . because of his acts of sexual harassment against all women employees repeated over and over.”
Barry then added, in a mostly autobiographical paragraph,
We concede that this evidence [of an atmosphere filled with acts of sexual harassment] did come in, but it came in a disorganized, unplanned fashion. Vinson and her counsel were demoralized. Vinson had no money to pay for witness fees in order to recall her witnesses for rebuttal.
Although still disorganized and soldiering on with no money, Barry at least was no longer working completely alone.
Back when she was beginning her appeal, she wrote for help to the legal director of Working Women’s Institute, the new name for the group that coined the term sexual harassment at Cornell five years earlier. Although now moved to a rich-sounding address in Manhattan, Working Women’s Institute remained poor—cubby-holed in the basement of a church on Park Avenue. But it had a legal director, Joan Vermeulen, who turned for help to the wealthier Women’s Legal Defense Fund in Washington, which found another attorney, Ronald Schechter, who helped Barry after she won the chance to appeal. As well as writing a short brief, he teamed with her to argue Vinson’s case before a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, on February 16, 1982. In oral argument, Barry thought he did a great job. She wished she had done as well.
Now she could do nothing more. She and Mechelle Vinson settled in to await an opinion. They would wait, in part, because one of the judges on the three-judge panel was Judge Spottswood Robinson.
BARRY’S ARGUMENT CAME AT THE START of bad days for Robinson. His decision in Barnes had set him on track to become his court’s expert on sexual harassment, and in 1982 he was about to become chief judge of the circuit. Then, in the spring after the argument in Vinson, he fell ill. When doctors discovered a benign growth on his colon, they ordered surgery. Complications followed, forcing more surgery. For much of the next two years, Judge Robinson could not go to court. His opinion writing, never rapid, slipped into a deep backlog.
As months passed, Barry’s life got harder. Giving up her one-room office-apartment in Washington, she moved home to California to start her legal practice anew. As before, however, she seemed to specialize in defending people without money. Meanwhile, Vinson couldn’t find bank jobs and wound up delivering newspapers and working as a cashier in a food store. Neither had enough money to stay in touch by phone. A year passed. Vinson enrolled in nursing school but had to drop out for lack of funds. Once in a great while, she called Barry to ask what was happening. “Well,” Barry would say, “call the court of appeals, Mechelle. I don’t know.” Barry did not say what she believed: the court of appeals would never rule.
In early 1985, some three years after Barry had argued before Judge Robinson, Mechelle Vinson received a call at her parents’ home from a journalist, asking if she had heard “the decision.” When Vinson asked what decision, the journalist said, You’ve won.
Vinson said, as she later recalled, “Oh come on, you’re playing, just playing around.” She “just felt that, after all these years, they’d forgotten, nothing’s going to happen, and if it comes out it’s going to be another negative decision.” But the journalist insisted, so Vinson turned on the news, and there it was. And then Barry called and was crying out, as Vinson would later recall, “WE DID IT WE DID IT WE DID IT WE DID IT.” And Vinson said “Yes, it’s great!” But what was it?
TO DECIDE THE CASE OF MECHELLE VINSON, Chief Judge Robinson began with a problem that can shackle any court of appeals: the appeals judge must accept the “facts” that have been found by a trial judge. After Vinson’s trial, Judge Penn had declared, among his findings of fact, that Vinson “was not required to grant Taylor . . . sexual favors as a condition of either her employment or in order to obtain promotion.” Following apparently from that “fact,” Judge Penn then found that Vinson “was not the victim of sexual harassment and was not the victim of sexual discrimination.”
Robinson had to find a route to steer around these problematic legal facts. To do so, he suggested that Judge Penn had been ruling on a too-narrow definition of harassment. And, Robinson was able to say, in effect, no wonder: mere weeks after Penn’s decision against Vinson, the law had begun to acknowledge the existence of a new form of sexual harassment: “environmental” harassment.
The breakthrough came in March of 1980 when a set of sexual harassment guidelines emerged from a part of the federal government that, following early fears it would become a “sex commission,” had done little to help women: the Equal Employment Opportunity Commission. Development of sexual harassment guidelines had emerged there thanks to Eleanor Holmes Norton, appointed director in 1977, who wanted to encourage women to bring complaints and wanted to educate courts and employers. The guidelines opened by defining the most familiar form of sexual harassment, quid pro quo.
From this now-illegal harassment, the EEOC guidelines turned to another type, the second form discussed in MacKinnon’s Sexual Harassment of Working Women. Unwelcome sexual advances, requests for sexual favors, and so on also become illegal sexual harassment when the
conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
Whereas MacKinnon had said that “condition of work” harassment “simply makes the work environment unbearable,” the EEOC under Eleanor Holmes Norton added specificity. (MacKinnon had not heard about the guidelines until they were drafted. She generally liked what she saw.)
The EEOC guidelines became public, as “interim interpretive guidelines,” on March 11, 1980—two weeks too late to help Barry and Vinson, who lost her case before Judge Penn on February 26.
ENVIRONMENTAL HARASSMENT got its day in court two weeks after publication of the EEOC’s interim guidelines. On March 26, 1980, three judges of the Court of Appeals for the District of Columbia Circuit, including Spottswood Robinson, heard the appeal for Sandra Bundy.
As the lower court had found fully legal, Sandra Bundy’s workplace maintained a standard operating procedure—“the making of improper sexual advances to female employees.” One of Sandra Bundy’s supervisors had pressed her to spend the afternoon in his apartment looking at sexual literature and pictures, which he said could not be bought in bookstores. Another, who told her he had “a pocketful of money,” suggested she go with him to the Bahamas or just “lay up in a motel.” When Bundy complained to a higher supervisor, he urged her to begin a sexual relationship with him and added that “any man in his right mind would want to rape you.”
Such “improper sexual advances,” ruled the district court, amounted to no more than “a game played by the male superiors—you won some and you lost some.” The decision depicted a boy’s playground, a working world in which boys will be boys. Within the game, such advances amounted to not just standard procedure but also, as the judge said, “a fact of life, a normal condition of employment.” This boy’s game, he continued, was “not a matter to be taken seriously.”
This game theory evidently appalled Robinson and two of his colleagues on the court of appeals. Writing for their three-judge panel, Judge J. Skelly Wright pounced on the district court’s view that “Bundy’s supervisors did not take the ‘game’ of sexually propositioning female employees ‘seriously.’” “To state the all too obvious,” the court of appeals observed, a supervisor might avoid investigating “precisely because” he realized that proof of sexual harassment would seriously indict his personnel.
The suspicion that sexual harassment constituted more than a game led the court of appeals to question “whether the sexual harassment of the sort Bundy suffered amounted by itself”—even if she suffered no tangible losses in income or opportunity—“to sex discrimination with respect to the ‘terms, conditions, or privileges of employment.’” Put another way, the court asked whether a woman forced to suffer through this so-called game had lost any privilege guaranteed by the discrimination-fighting language of Title VII. To answer what it called this “novel question,” the court of appeals turned to two primary sources: the abundant litigation history concerning race discrimination and the scant legal literature concerning sexual harassment. In an extensive review of race discrimination cases, the court of appeals found ample ammunition to support Bundy. It relied at length on a key race-discrimination case from another circuit, which concluded, regarding the key language of Title VII, that
“terms, conditions, or privileges of employment” is an expansive concept which sweeps within its protective ambit the practice of creating a work environment heavily charged with ethnic or racial discrimination. . . . One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers.
The concept of hostile environment abounded in cases declaring that Title VII was violated by a pattern of racial, ethnic, or religious slurs, or by segregated employee eating clubs—all situations involving not lost jobs or lost promotions but a discriminatory environment. Yet when the court of appeals turned to sexual harassment, it found no cases to support its novel stance. But it did find two sources from outside the courts: the EEOC’s new guidelines and Catharine MacKinnon’s Sexual Harassment of Working Women.
The Bundy court cited EEOC rulings from the past decade, which held that Title VII “grants an employee a working environment free of discrimination.” Furthermore, the Bundy court could cite the new EEOC guidelines on sexual harassment, which defined sexual harassment to include conduct that created “an intimidating, hostile, or offensive work environment.”
More remarkable than the Bundy court’s deference to the EEOC was its deference to Sexual Harassment of Working Women. “Should women be required to counterattack,” MacKinnon’s book asked about condition-of-work harassment,
in order to force the man into explicit employment retaliation so she has something to complain about? The problem here is . . . analogous to a problem within the rape laws: a victim who resists is more likely to be killed, but unless she fights back, it is not rape, because she cannot prove coercion. With sexual harassment, rejection proves that the advance is unwanted but also is likely to call forth retaliation, thus forcing the victim to bring intensified injury upon herself in order to demonstrate that she is injured at all. . . . [T]o require a rejection amounts to saying that no series of sexual advances alone is sufficient to justify legal intervention until it is expressed in the quid pro quo form. In addition, it means that constant sexual molestation would not be injury enough to a woman or to her employment status until the employer retaliates against the job for a sexual refusal. . . . And this, in turn, means that so long as the sexual situation is constructed with enough coerciveness, subtlety, suddenness, or one-sidedness to negate the effectiveness of the woman’s refusal, or so long as her refusals are simply ignored while her job is formally undisturbed, she is not considered to have been sexually harassed.
Reprinting the long last sentence without quotation marks, the court of appeals transformed MacKinnon’s opinion into judicial opinion. It ruled not only that Bundy had shown that she was a “victim of a pattern or practice of sexual harassment” but that such harassment was illegal sex discrimination “even if it does not result in loss of tangible job benefits.” Now, at least within the federal courts of the District of Columbia, sexual harassment included the creation of an “intimidating or hostile or offensive work environment.” Thus the concept of hostile environment—developed by the efforts of Working Women United for Carmita Wood, of Catharine MacKinnon in her law school paper that became Sexual Harassment of Working Women, and of Eleanor Holmes Norton at the EEOC—entered the law of sexual harassment.
BUNDY GAVE JUDGE ROBINSON NEW LAW to apply in the case of Mechelle Vinson. Reviewing her case in district court, he read about Pat Barry’s fruitless efforts to focus her case-in-chief on the hostility in Vinson’s work environment. Mostly missing from the official record were details such as Christine Malone’s allegations that she was torn down by Sidney Taylor’s comments about getting “between” her legs, Mary Levarity’s claim that she was told she would have to “pay up” sexually, and Wanda Brown’s surprise that her boss wanted to rub her feet and show her Penthouse nudes.
Robinson read Judge Penn’s findings of fact, to which Robinson had to defer: Vinson “was not required to grant Taylor . . . sexual favors as a condition of either her employment or in order to obtain promotion,” and she “was not the victim of sexual harassment and was not the victim of sexual discrimination.” The combination of Barry’s discussion of environment—which Penn had mostly banned from her case-in-chief—and Penn’s finding of no harassment led Robinson straight to Bundy. Judge Robinson was able to say that Judge Penn’s finding was flawed: the new decision in Bundy, indeed the legal concept of environmental harassment, had not existed when Judge Penn ruled. Thus Penn had been able to judge only in terms of what Robinson called “Barnes-type” harassment (quid pro quo). Now, it was possible to consider “Bundy-type” harassment. And surely, on the new legal ground created by Judge Robinson and his two colleagues in Bundy, Mechelle Vinson had a legal claim.
Judge Robinson ruled that Vinson’s “grievance” was clearly of the Bundy-type and thus demanded an “inquiry as to whether Taylor,” in the language of Bundy, “created or condoned a substantially discriminatory work environment.” This would require asking whether Vinson was subjected (again in the language of Bundy) to “sexually stereotyped insults” or “demeaning propositions” that illegally poisoned the “psychological and emotional work environment.”
Robinson’s new focus on environment gave him leeway to steer away from another of Judge Penn’s findings of “fact”: the hypothetical finding that if Vinson and Taylor had a sexual relationship, it was voluntary and had nothing to do with Vinson’s job or promotions. Like Pat Barry, Judge Robinson worked to discredit the hypothetical. “This finding leaves us uncertain,” he wrote, “as to precisely what the court meant.” (Because the finding also left its origins uncertain, Robinson guessed it might originate in Penn’s attention to testimony regarding Vinson’s style of dress and alleged fantasies about men—fantasies that omitted her boss and whose existence she mostly denied. Such testimony, Judge Robinson ruled, “had no place in this litigation.”) As to the finding’s meaning, Judge Robinson suggested one possibility: “because Vinson’s employment status was not affected,” there “was no Title VII violation.” This Robinson dismissed as an obvious error, overturned by the Bundy ruling that sexual harassment could be created by a hostile environment that need not have led to the loss of “tangible job benefits.”
Robinson could not resist subjecting Penn’s hypothetical to another possible interpretation: “Because the relationship was voluntary there was no sexual harassment.” Because she didn’t refuse, that is, she has no claim. Robinson attacked that interpretation with the Bundy holding that “a woman employee need not prove resistance to sexual overtures” in order to claim sexual harassment. “From that point,” Judge Robinson continued, “we take what is hardly a major step by recognizing that a victim’s capitulation to on-the-job sexual advances cannot work a forfeiture of her opportunity for redress. If capitulation were dispositive,” he went on, a woman who once gave in to her boss’s pressures “would thereby lose all hope of legal redress for being put in this intolerable position in the first place.”
Thanks to Bundy, Robinson made clear, as of 1985 Mechelle Vinson had a chance. The district court, he ordered, must take Vinson’s case afresh; Judge Penn must hear Pat Barry’s argument about hostile-environment harassment. That was the news that led Barry to tell Vinson that “WE DID IT.”
PATRICIA BARRY DID NOT EXPECT what hit next: a powerful dissent written by a judge who had played no part in earlier court decisions. Following a standard procedure that brings success only rarely (probably less than one chance in 250), the bank challenged Judge Robinson’s opinion by requesting a rehearing by all the judges of the court of appeals sitting together—sitting en banc. The judges refused, by a vote of 10 to 3.
One of the losing judges, in a rare move, wrote a dissent. He was Judge Robert Bork, formerly a professor at Yale Law School, formerly the solicitor general of the United States (a position sometimes referred to as the Supreme Court’s “tenth justice,” a post that led to his firing of special prosecutor Archibald Cox, at the behest of Richard Nixon, in what became known as the “Saturday Night Massacre”), and soon to be nominated himself to the Supreme Court (and to see his nomination defeated in a controversial battle that would establish him, before a national television audience, as one of the most formidable legal figures in the nation). Judge Bork’s dissent was joined by two eminent colleagues: Judge Antonin Scalia, who himself would be elevated to the Supreme Court, and Judge Kenneth Starr, who as special prosecutor in the late 1990s would impeach President Bill Clinton. This dissenting trio had an evident goal: catch the interest of the Supreme Court.
Bork’s dissent pounced on Robinson’s effort to assure that a victim’s “capitulation to on-the-job sexual advances” would not cost her “all hope of legal redress.” In his attack, seizing on the notion that Vinson had taken part in a sexual relationship that was voluntary, Bork utterly rephrased what he claimed Robinson had explicitly stated. Robinson’s depiction—with apparently ironic quotation marks—as a “victim’s ‘voluntary’ submission to unlawful discrimination” became, in Bork’s un-ironic rephrasing, a “plaintiff’s voluntariness in participating in a sexual relationship.”
Bork’s rephrasings—from “ ‘voluntary’ submission” to “voluntariness,” from “unlawful discrimination” to “sexual relationship”—helped him to raise a fearful specter: “sexual dalliance, however voluntarily engaged in, becomes harassment whenever an employee sees fit, after the fact, so to characterize it.” Bork, drawing on testimony about Vinson that Judge Penn had not used against her in his opinion but that the bank had raised on appeal, related that
evidence was introduced suggesting that the plaintiff wore provocative clothing, suffered from bizarre sexual fantasies, and often volunteered intimate details of her sex life to other employees of the bank.
Bork did not claim that Vinson had directed the alleged fantasies or details or even styles of dress toward her boss. Gathered together, Bork’s implications offered a coherent specter: bad women can turn voluntary sex into federal lawsuits.
Bork’s claim that such lawsuits would be impossible to defend led him to a related issue—one that had been present but became more dramatic now that, following Robinson’s decision, a lower court was going to reconsider whether Taylor’s actions had created a hostile work environment: Should the bank be liable for harassment, if any, by Taylor? Or should an employer like the bank perhaps be insulated, as Judge MacKinnon worried in Barnes, from “vicarious liability”?
In Bork’s reformulation, Robinson’s opinion meant “that the employer is virtually converted into an insurer that all relationships between supervisors and employees are entirely asexual.” Since insurance can’t stop sex, Bork made clear, the employer would make heavy payouts: “Though the employer has no way of preventing sexual relationships, he is defenseless and must pay if they occur and are then claimed to be harassment.”
Bork’s dark revision predicted ugly spawn: every sexual relationship can go bad; every bad relationship involving a supervisor can damage an office “environment”; every bad environment can generate a federal suit; every federal court, to the highest level, can be forced to sort out the subtleties of inharmonious personal relationships. The consequences for the courts might well be, as one lower court judge had suggested in an earlier sexual harassment case, needing “4,000 federal trial judges instead of some 400.” Concluding his portrayal of the defenseless employer, Bork added, lest his point be missed by the nine justices in his audience, “The Supreme Court has never addressed the question of an employer’s vicarious liability under Title VII.”
“Oh boy, here we go,” Pat Barry thought, when she saw Bork’s dissent. Five months later, in October of 1985, the Supreme Court agreed to review Judge Robinson’s opinion. The first case of sexual harassment to reach the Supreme Court would be Mechelle Vinson’s.
Barry was worried. In the decade since Vinson found her first job at the Capital City bank, most of America’s eleven federal court circuits had come to accept what courts at first denied: sexual harassment was sex discrimination, prohibited by Title VII of the Civil Rights Act of 1964. Vinson’s case, because it had moved so slowly, now seemed largely in step with the law—except for the crucial concept of hostile-environment harassment, which at least had support in the guidelines of the EEOC and in Bundy. With all circuits and the EEOC apparently in agreement, Barry wondered why the Supreme Court would want to hear Vinson’s case. Would it turn back years of advances in the law of sexual harassment?
Barry worried also because she had argued before the Supreme Court once and lost. By a vote of 5 to 4, Barry failed to extend the right of jury trial to federal employees who brought cases under the Age Discrimination in Employment Act. Although Barry liked to tell herself she had lost with dignity, she blamed herself for making what she called “bad law.”
Barry was now in the thick of her legal practice in Grover City on the mid-coast of California. She knew she needed help. As she sat in her office typing her argument (already late) to the Supreme Court that it should not accept an appeal of Judge Robinson’s decision, she expected to lose that argument. With Bork’s dissent on her mind, she sent out a letter to ask for assistance from the person whose writing had already done the most to help her: Catharine A. MacKinnon.
FOR CATHARINE MACKINNON, BARRY’S LETTER of August 1985 came at a bad time: she was more or less unemployed and feeling financially desperate. Beginning with her earliest attempts at admission to Yale Law School, MacKinnon continued a complex relationship with legal academia. While a graduate student in political science, beginning in the spring of 1974 she began teaching courses to undergraduates that led to her creation of the first course in the Women’s Studies Program at Yale. When MacKinnon’s undergraduates heard details from her law school paper, some of them began describing what sounded like sexual harassment by faculty members at Yale, and the students then conferred with a lawyer’s collective that MacKinnon had founded with other Yale law students. The collective, with one of its partners, Anne Simon, as lead counsel, filed the first sexual harassment case in education. None of the Yale students won. Some claims were declared moot because students had graduated. The trial judge apparently did not believe the account of the student whose case was permitted to go to trial. But MacKinnon’s collective and students could claim a major victory: the first decision in federal court affirming that sexual harassment claims could be brought by students as sex discrimination claims against universities.
In 1979, following publication of MacKinnon’s Sexual Harassment of Working Women, law students at Yale began pressing to have MacKinnon hired to teach, and she became a lecturer in law at Yale in the spring term of 1980. But this position would not lead to a full-time job. Years afterward one of her colleagues, Professor (and later Judge) Guido Calabresi, would say that MacKinnon’s work on sexual harassment was so original that law faculties did not understand its significance, and MacKinnon “didn’t have the patience to write the kind of busy-work that we would have understood,” through which she could have won tenure “with the left hand.”
MacKinnon’s teaching at Yale began a string of such untenured appointments, which would eventually take her for short-term teaching to a list of major American law schools including Stanford, Harvard, Chicago, and the University of California at Los Angeles, and also to a junior faculty position at the University of Minnesota. She traveled from job to job in an increasingly battered Isuzu pickup truck. When she received Pat Barry’s letter in late summer, MacKinnon was living in a rented cabin north of San Francisco and had no job. Without office, library, computer, secretary, research assistant, or salary, she agreed to work on Vinson.