Taking It All the Way to “Sandra Fucking Day O’Connor”
Harris v. Forklift Systems, Inc. (1993)
On a hot Nashville afternoon in August 1987, Teresa Harris put a small tape machine in her purse, pressed “record,” and walked into her boss’s office to quit. It was the last thing she wanted to do; Harris loved her job. As rental manager at Forklift Systems, she negotiated deals with contractors to lease the company’s fleet of cranes, trucks, and other equipment—the rare woman in the male-dominated world of construction. Harris was a Nashville native and the eldest of five children. Although as a girl she had harbored dreams of becoming a lawyer like Atticus Finch in To Kill a Mockingbird, Harris had been working since she graduated from high school. After starting out in the customer service department of a shoe manufacturer, she switched to sales, first selling boats and other watercraft and then construction equipment. In the spring of 1985, eager to escape from her job with a company whose co-owners were in the middle of an acrimonious divorce, Harris accepted a job offer from Charles Hardy, Forklift Systems’ owner. With a passing resemblance to Ava Gardner and a quick, salty wit, Harris was a born saleswoman, and in her first year on the job, she doubled the company’s rental revenue.
But Harris’s success masked a more disturbing reality. Almost as soon as she arrived at Forklift Systems, Hardy began showing his true colors. He constantly commented on women employees’ clothing and appraised their bodies. He told Harris that she had a “racehorse ass” and advised her not to wear a bikini “because your ass is so big, if you did there would be an eclipse and no one could get any sun.” He would approach Harris while jingling change in his front pants pocket. As Harris recalled, he liked to tease, “Teresa, I have a quarter way down there. Would you get that out of my pocket?” He told Harris that they should start “screwing around” and joked that they should go to a Holiday Inn to negotiate her raise (although by the time he made that proposal he had cut her commissions in half because, in his words, she “made too much damn money for a woman”). Hardy dropped pens and papers on the floor and asked women employees to pick them up, then suggested what kinds of necklines would better show off their breasts. He turned the air conditioner down to make the office colder, jovially voicing his hope that the women’s nipples would start to show.1
Beyond this barrage of sexual comments, Hardy insulted Harris’s competence on a regular basis, often in front of her male peers. One of two women among six managers, Harris was the only one who worked on the business side of Forklift Systems; the other female manager, Hardy’s daughter, handled administrative matters, such as ordering office supplies and paying the company’s bills. “You’re a woman, what do you know?” Hardy would sneer when Harris spoke up at management meetings. He often told Harris to shut up, called her a “dumb-ass woman,” and said that the company needed a man in her job. Not surprisingly, Harris’s male colleagues parroted Hardy’s opinions and used the same sort of disparaging language.2
Hardy’s harassment had a profound impact on Harris. Having worked mostly among men for years and grown used to hearing (and using) some profanity at work, Harris felt humiliated by Hardy’s constant appraisals of her body. Worse yet were Hardy’s statements about her competence. She was proud of her career and the reputation she had earned in Nashville as a savvy businesswoman, without the benefit of a college degree. “The comments about my ability to do my job and that I was stupid and I was dumb devastated me,” Harris later testified at her trial. “I hated walking in there. Everybody made fun of me because Charles Hardy did that. And I was supposed to laugh about it, and it wasn’t funny.” Harris developed chronic insomnia, and would “get drunk every night so I would go to sleep so I could get up and go to work the next day.” Her heavy drinking strained her family life, especially her relationships with her two sons. She cried “all the time.” She was often short of breath and would sit in her office, shaking uncontrollably. When she went to her doctor for help, he found nothing physically wrong with her and sent her away with prescriptions for tranquilizers and sleeping pills.3
Harris had always considered herself a feminist, and Hardy’s mistreatment enraged her. She suspected it might even be illegal. But she didn’t feel she could quit, let alone file a lawsuit. Hardy was prominent in the Nashville construction business, the field in which Harris had the most experience. As a single parent and the main source of support for her ailing grandmother, she needed a job. And although she married while working for Hardy, that did nothing to alleviate the potential financial fallout were she to resign; Forklift Systems was a major customer in a business owned by Harris’s new husband, Larry. Not only did his company sell batteries to Forklift Systems for use in its equipment, but Hardy also had made a loan to Larry to help finance the business. Were Harris to quit, she feared her husband’s livelihood would be ruined along with her own. Given these realities, Harris says, “it really was a no-brainer to just shut up.”
But by August 1987, after putting up with two years of abuse, Harris had had enough. She scheduled a meeting with Hardy to hand in her resignation. Bringing the tape recorder was a lawyer friend’s idea; if Harris caught Hardy admitting to the harassment on tape, she might have some ammunition to ensure that he wouldn’t blackball her. But when Harris told Hardy she was leaving and explained why, Hardy insisted that he had only been kidding and just was trying to make her feel like “one of the boys.” He apologized and swore that from then on, he would treat her with respect. Reassured, if wary, Harris agreed to stay.
Whether or not Hardy genuinely intended to change his ways, he didn’t keep his promise for long, as Harris later testified. A few weeks after their meeting, when Harris told him in front of a group of coworkers that she had landed a big client, Hardy asked, “What did you do, Teresa? Promise the guy some bugger on Saturday night?” It was the last straw. “He was embarrassing me to me, because I was taking it,” Harris said. “I didn’t want to anymore.” She quit a few days later. Within a week, Hardy canceled Forklift Systems’ account with Larry Harris’s company and sued Larry Harris to recover the balance of his loan. A friend referred Teresa Harris to an attorney.
* * *
Harris didn’t know it, but in 1986, a little more than a year before she quit her job, the Supreme Court had issued its landmark ruling in Meritor Savings Bank, FSB v. Vinson.4 Groundbreaking as Vinson was in declaring sexual harassment to be sex discrimination, it fell short in one respect. The Court didn’t explain at what point harassing conduct stopped being merely offensive and became illegal—or, in the Court’s words, at what point the harassment became so “severe or pervasive” that it “created an abusive working environment.”5
Mechelle Vinson had alleged far more egregious harassment at the hands of her boss, Sidney Taylor, including violent physical and sexual abuse—indeed, most of what she’d accused him of had been criminal—so the Court hadn’t needed to articulate any particular legal test in order to find Vinson’s work environment “abusive.” But as Teresa Harris’s experience illustrated, women face myriad other kinds of harassment on the job that do not reach that outer boundary, ranging from unwanted touching or leering commentary about their bodies to propositions, vulgar jokes, and graphic discussions of sexual exploits, to name just a few indignities. Then there is the conduct that is nonverbal yet nonetheless capable of “altering” a work environment for the worse, like displays of obscene graffiti, pornography, or calendars featuring a different bikini-clad woman each month.
After Vinson, then, how were employers, women, and courts supposed to assess whether harassment was bad enough to be illegal? Was it enough if the victim testified that she personally perceived the environment as abusive? Or did she need to show more quantifiable (if not financial) harm, such as psychiatric treatment for her distress or a demonstrable decline in her job performance? The skepticism leveled at Anita Hill during Clarence Thomas’s 1991 confirmation hearings reflected this tension. Even if Thomas had discussed pornography and bestiality and pubic hairs on Cokes, was that enough to violate the law? Hill did not allege that Thomas had touched her inappropriately or otherwise intimidated her, such as by threatening to fire her if she reported him. And Hill not only had managed to continue doing her job throughout the period when Thomas supposedly harassed her, she had followed him from the Department of Education to another job at (ironically) the EEOC. Indeed, even after they stopped working together, she had maintained contact with him by speaking on the phone and sharing the occasional meal.
Skeptics claimed that if Thomas had behaved as grotesquely as Hill later said he did, how was she able to keep working for him? And why, after they no longer worked together, did she continue to cultivate a professional relationship with him? Surely the harassment couldn’t have been as bad as she said it was. Surely she must not have been all that bothered by it.
* * *
After quitting Forklift Systems in late 1987, Teresa Harris met with attorney Irwin Venick. A wry, bearded New York native who had moved to Nashville to attend law school at Vanderbilt and never left, Venick was in his late thirties and roughly ten years into his legal career; he had a diverse civil litigation practice that included a bit of work in the area of employment law on behalf of the state’s civil service employees’ union as well as a few trials. Although he was well aware of the Vinson decision, he had never litigated a sexual harassment case. Still, after talking with Harris, listening to her recorded conversation with Hardy, and getting corroboration of Hardy’s behavior from another woman who had worked at Forklift Systems, he concluded that Harris’s case fit within Vinson’s amorphous definition of a hostile environment.
The key obstacle was a decision handed down the prior year by the U.S. Court of Appeals for the Sixth Circuit, the federal appellate court whose interpretations of the law are binding on courts in Tennessee. That case, Rabidue v. Osceola Refining Company,6 was similar to Harris’s: As recounted in the court’s decision, a male manager frequently made obscene comments to the women in his office, calling them “whores,” “cunts,” “pussy,” and “tits,” often directing his abuse specifically at the female manager who eventually brought suit, Vivienne Rabidue. He called Rabidue a “fat ass” and told her coworkers that “all that bitch needs is a good lay.” Rabidue’s male coworkers also had a habit of displaying pictures of naked women in the office.7
After the trial court dismissed Rabidue’s claim and her lawyer appealed, the Sixth Circuit became the first of the nation’s twelve federal appellate courts to apply Vinson. Agreeing with the trial judge, the court upheld the dismissal. Rabidue, it maintained, had not shown the work environment to be sufficiently abusive to qualify as a hostile one in the legal sense defined by Vinson. It reached that conclusion by imposing an additional evidentiary burden: Not only did Rabidue have to show that the environment was abusive, but she also had to show that it was so abusive as to “seriously affect [her] psychological well-being.” After all, the court noted, “sexual jokes, sexual conversations and girlie magazines” were always going to be part of the American workplace, and Title VII was not meant to change that.8 In essence, Rabidue held that a woman can’t expect her work environment to be free of all harassment, just harassment so severe that it damages her mental health.
Venick knew it would be an uphill battle for Harris to satisfy the new Rabidue standard. Harris undeniably had suffered extreme distress, which manifested itself in her behavior (insomnia, heavy drinking, and disrupted family relationships) and her physical symptoms (shortness of breath, crying, and shaking). But she had not seen a counselor, her primary care doctor had found nothing wrong with her, and she had been able to continue doing her job—even excelling at it. Nevertheless, Harris spoke so compellingly about her emotional deterioration, and Hardy’s harassment so clearly fell within Vinson’s parameters as being “unwelcome” and “severe or pervasive,” that Venick believed they had a good enough chance of winning to take the case. Aware of these caveats, Harris agreed to go forward. “I wanted to take Charles Hardy to court and prove that he had done these things,” she says. “I had no expectation as far as finances, money goes. That never played into it at all. Primarily it was to win.”
* * *
Teresa Harris’s trial began on July 23, 1990, in federal district court in Nashville and lasted close to a week. Harris took the stand to describe Hardy’s abuse as well as the toll it took on her. Venick also called as witnesses a female Forklift Systems employee and two male employees who attested to Hardy’s offensiveness. Hardy, for his part, did not deny any of the behavior attributed to him and merely claimed that he had been joking. He damaged his credibility, though, with a ham-fisted attempt to manufacture damaging evidence against Harris. He produced handwritten notes from his calendar showing that employees had lodged complaints against her, prompting Venick to put on an expert witness who analyzed the ink from those notes and declared it too recent to be authentic.
The company did manage to find three women employees, all in their early twenties and holding low-level clerical positions that put them in less frequent contact with Hardy, who testified that they weren’t bothered by Hardy’s behavior. The defense also focused on the soured business relationship between Charles Hardy and Larry Harris as the real motivating factor in Teresa Harris’s resignation and lawsuit. Nevertheless, after all the testimony ended and the closing statements had been delivered, Harris and Venick felt the totality of the evidence weighed in their favor and were optimistic that the judge would rule for Harris.
A few months later, the decision was in. The judge agreed that Hardy had in fact subjected Harris to “a continuing pattern of sex-based derogatory conduct.” He further held that Hardy was “a vulgar man” who “demean[ed] the female employees at his work place.”9 But he didn’t think Hardy’s behavior met the onerous new Rabidue standard of “seriously affecting [Harris’s] psychological well-being.” Just as Venick had feared, Harris’s emotional strength in the face of Hardy’s abuse proved her undoing: “Although Hardy may at times have genuinely offended [Harris],” wrote the judge, “I do not believe that he created a working environment so poisoned as to be intimidating or abusive to [her].”10 Harris was furious. “How can a judge say, ‘This man did everything you said. He’s a vulgar man who demeans women in the workplace, but so what,’” she fumed to one reporter. “That eats me up inside. That can’t be. That has to change.”11
Venick filed an appeal with the Sixth Circuit. This put Harris’s case in front of the same court that had decided Rabidue; now the court could either rescind the requirement that a harassment plaintiff show psychological harm or conclude that Harris had met that test when she testified at her trial about her heavy drinking, insomnia, and other symptoms. But the court did neither. Not deeming the case worthy of a full written opinion, on September 17, 1992, it merely issued a statement affirming the district court judge’s decision.12
Although her chances before the appeals court had been slim because of its prior decision in Rabidue, the ruling hit Teresa Harris hard. The case was over, and she had lost. And what had her decision to fight Charles Hardy gotten her? Whether Hardy had pressured competitors to blackball her or her lawsuit simply had branded her as a troublemaker, Harris now could not get a job. By this point, she had been unemployed for five years. For the first time in her life, she had fallen behind in paying her bills, seriously damaging her credit. Her electricity had been cut off twice. Officials had shown up in her driveway to repossess her car. She had had to sell her house just to pay her bills. Harris, who had always been proud of her professional success and her spotless credit, describes her slide into financial hardship as “very humiliating.”
Ultimately, she had decided to embark upon a new professional life as a nurse, and returned to school—but that only brought a new round of bills to pay, and it would be another year before she received her degree. Her personal life was no better; she and Larry Harris were divorcing. After learning of her loss before the Sixth Circuit, Teresa Harris called her cousin and went out to get drunk. She spent the rest of the night sick to her stomach, furious at herself for letting Charles Hardy make her miserable yet again.
Venick called Harris the next day to tell her that they had a decision to make: Should he file a petition with the Supreme Court to review the case? If he was going to do it, he needed to do it soon. Harris was dubious. She felt demoralized, even hopeless. She was looking forward to starting her career in nursing; maybe she should just embrace this new chapter and leave all things related to Forklift Systems behind.
As Harris told it, the answer came to her that night while taking a bath. She thought back to an encounter she had had with Hardy a few weeks before the trial. A former coworker had called her to say that Hardy wanted to meet with her. Without telling Venick, Harris reluctantly agreed, thinking that if she could manage to negotiate an end to the case, it would be best for everyone. She met with Hardy and the former coworker—whom she had insisted also be present—at a local restaurant. Hardy was solicitous and gave her his best good ol’ boy smile.
“Now, Teresa, what’ll it take for you to drop this case?”
Harris told Hardy she needed to pay Venick’s fees and to recover some of the income she had lost as a result of having to quit her job, and asked for $25,000. This figure must have been higher than Hardy was expecting, because he grew enraged. “He told me that he was going to wear me out in court,” Harris recalled, “that I did not have enough money to fight him. And of course, he insulted me, got nasty with me. He told me he was going to ruin me.”
Harris was no less surprised by her own reaction: “I said to him, ‘I will sell every fucking thing I own, I will not stop.’ And I looked at him and I said, ‘I’m talking Sandra Fucking Day O’Connor!’”
Harris laughed as she told the story. (“I don’t think he knew who that was!”) With that flourish, Harris grabbed her belongings and marched out of the restaurant. Then she sat for a while in her car in the parking lot, alternately berating herself for making such an outrageous threat and feeling even more livid at Hardy’s arrogance than when she arrived.
Lying in the bathtub the night after her bender, Harris realized that she did not need to think at all about whether to appeal to the Supreme Court. She called Venick at home that night. “I told Charles Hardy that I was taking his ass all the way,” she told Venick, “and I am not a liar. We’re doing it. What are our chances?”
Venick’s rueful response still tickles her: “I don’t think we have a snowball’s chance in hell.”
“That’s okay,” Harris told him. “We’re doing it. I said I was going to do it—and we’re going to do it!”
* * *
In preparing to ask the Supreme Court to review Harris’s case, Venick knew he needed guidance. He consulted with Bob Belton, a Vanderbilt law professor who, during his tenure as an attorney with the NAACP Legal Defense and Education Fund, had been part of the team that presented the landmark Title VII case, Griggs v. Duke Power Company,13 to the Supreme Court. Two of Belton’s Vanderbilt colleagues, each of whom had clerked for a Supreme Court justice and had wisdom to share about the process, also pitched in.
A few months later, in December 1992, Venick submitted the petition for certiorari. Noting that the Meritor decision “provided limited guidance regarding the necessary elements of proof for a successful claim,” Venick asked the Court to clarify it. He told the Court that the question posed by Teresa Harris’s case—“Is a plaintiff in a sexual harassment case also required to prove, in order to prevail, that she suffered severe psychological injury?”—had been answered in contradictory ways by various federal courts of appeals. After the Sixth Circuit decided Rabidue, the Seventh and Eleventh Circuits had followed suit and imposed the “severe psychological injury” standard while the Third, Eighth, and Ninth had rejected Rabidue and required only that a plaintiff show that she was offended by the harassment (and that she was “reasonable” in having that reaction).14
By noting this so-called circuit split, Venick hoped to convince the justices that their intervention was necessary to ensure fair and uniform application of Title VII to harassment cases around the country. By the time of Venick’s petition, the number of sexual harassment complaint filings was skyrocketing. Although the EEOC didn’t keep reliable statistics on the number of charges filed prior to 1991, between the 1991 and 1992 fiscal years, sexual harassment charges filed with federal and state officials rose by a whopping 40 percent, from approximately 7,000 to more than 10,000.
What had occurred in the intervening year? The Anita Hill–Clarence Thomas hearings. The Vinson case may have given women a legal remedy for sexual harassment in 1986, but it was the October 1991 hearings on Clarence Thomas’s Supreme Court nomination that started a national conversation about how sexual harassment plays out in real life: Harassers usually don’t look like drooling perverts, the harassed usually don’t look like helpless victims, and harassment, even if it’s only words, can be traumatic. For those women who already knew all of this—who listened to Hill and thought, “It happened to me too”—it was a galvanizing moment. “It’s hard to overstate [the hearings’] importance,” Marcia Greenberger, copresident of the National Women’s Law Center, later wrote. “The issue of sexual harassment was out of the shadows. . . . Pundits speculated that the Anita Hill testimony would forever intimidate women from ever coming forward again, but the opposite happened.”15
Another, more prosaic factor likely driving the uptick in charges was a recent change in the law. The 1991 Civil Rights Act had made it possible for workers who prevailed on their claims to recover damages for intangible harms, such as emotional distress, as well as punitive damages. Prior to Title VII’s amendment, workers could win reimbursement only for tangible economic losses, so they tended to bring harassment claims only if they could show—as Teresa Harris had alleged—that the abuse was so bad they’d been forced to quit. In those “constructive discharge” cases, lost wages could be recovered. But after 1991, the availability of damages for emotional harm meant that a woman could seek compensation even if she’d managed to keep working; such damages provided some measure of reimbursement, however inexact, for having gone through the indignity of working in a sexualized environment.
In March 1993, three months after Venick filed his petition for certiorari, he had his answer: The Court would hear the case. Oral argument was scheduled for October.
* * *
While preparing for a Supreme Court argument is a Herculean task for anyone, Venick felt significant added pressure. He was, in his words, a “rinky dink lawyer from nowhere.” Harris also was his first sexual harassment case. Venick knew that scores of women’s advocacy organizations were deeply invested in the outcome of Harris’s case. A ruling from the Supreme Court that only serious psychological harm could trigger Title VII liability would make the courts available to only a fraction of harassment victims. Were this to happen, countless other women—women who, like Teresa Harris, managed to continue performing their jobs despite egregious harassment, or who, like countless others, simply left their jobs before the harassment could damage their emotional well-being—would have no legal recourse.
These high stakes weighed on Venick in the months leading up to the argument. He was especially intimidated by the moot court convened in Washington, DC, by leading women’s groups and civil rights organizations. It took place at a conference table surrounded by roughly twenty of the heaviest hitters in the women’s rights movement. Venick spent hours fielding questions from attorneys who had litigated harassment cases for years both before and after Vinson. Although still a Washington outsider when he left that conference room, Venick was at least less of an unknown quantity, which boosted his confidence. After returning to Nashville, he also underwent another moot court, this one convened by Bob Belton.
It wasn’t only women’s rights organizations that were invested in the outcome of Harris. Nearly a dozen amicus briefs were filed on behalf of more than forty groups claiming an interest in the outcome of the case, including labor unions; women’s and civil rights organizations; and professional organizations of employers, attorneys, social workers, psychologists, and even police officers, who claimed an interest in the case due to the pervasive sexual harassment in their male-dominated ranks. Of these, only one organization, the Equal Employment Advisory Council—whose membership comprised 270 corporations and related business-oriented entities—weighed in on behalf of Forklift Systems.
One of the most significant voices among the amici was the EEOC, which also submitted an amicus brief on Harris’s behalf. Although the EEOC had taken a stand against sexual harassment for the first time in 1980, six years before Vinson was decided, in 1990 it issued a new set of Guidelines approving that decision. In Harris, the EEOC urged the Court to expressly reject the psychological harm requirement in favor of requiring only that the harassment “interfere with the work performance” of a “reasonable person.” The agency also specifically noted that verbal harassment alone can be sufficient to meet that standard.16
The American Psychological Association, which had featured so prominently among the Price Waterhouse v. Hopkins amici, also filed a brief. Unlike its Hopkins brief about sex stereotyping, in which it overtly took the side not just of Ann Hopkins but of its colleague Dr. Susan Fiske, the APA’s brief in Harris didn’t explicitly support either party. Its evidence was unquestionably more helpful to Teresa Harris, though. It offered a survey of the “growing body of social science data” developed since the 1970s showing that sexual harassment has many deleterious effects without causing “serious psychological harm.” Indeed, many of harassment’s harms are not psychological at all, the APA noted, but instead consist of the disruptions to victims’ careers as they adopt coping strategies to avoid the harasser: They change jobs, request transfers, abandon efforts to win promotion, and turn down opportunities that could yield greater pay, seniority, and access to professional networks.17
Especially noteworthy for Harris’s case was the APA’s recitation of research confirming that different women react differently to harassment. Consequently, focusing on the victim’s individual response does not say much about whether the harasser’s conduct crossed the threshold into illegality. Rather, the “psychological injury requirement shifts the focus of Title VII’s protection to the victim’s psychological wherewithal to sustain abuse, rather than the nature of the harasser’s conduct.” Studies showed that women with high self-esteem and supportive networks of friends and family are better able to “insulate” themselves from harassment’s worst effects.18 Teresa Harris exemplified this kind of resilient woman: She had continued performing her job well, despite the inner turmoil she experienced while at the office and the self-destructive behavior she engaged in when she went home at night. In other words, although she might not have shown it, she unquestionably was experiencing an “abusive working environment.”
* * *
The morning of the oral argument before the Supreme Court on October 13, 1993, six years after she’d quit Forklift Systems, Teresa Harris was overcome with nausea. “I was so scared, at the same time I was excited,” she recalled. “I knew, this is it. If it don’t play here, there’s no place to go.”
Although Harris had arrived in Washington a few days early to do some sightseeing—she brought along her mother, sister, brother-in-law, and a friend—she had not visited the Court. Walking up those famed marble steps and entering the chambers where the case would be argued was “overwhelming. I mean, it’s awesome, I’d never seen anything like it. It was unbelievable.” Charles Hardy did not attend.
Because seven years had gone by since Mechelle Vinson’s case was decided by the Court, more than half of the justices hearing Harris—Ruth Bader Ginsburg, Anthony Kennedy, Antonin Scalia, David Souter, and Clarence Thomas—would be deciding the issue of sexual harassment for the first time. The perspectives of the newest members of the Court, Justices Ginsburg and Thomas, could not have been more different: Justice Ginsburg had spent her career litigating landmark women’s rights cases while Justice Thomas recently had been accused of precisely the same kind of lewd conduct that Harris attributed to Hardy. It was hard to imagine an odder couple of colleagues.
Irwin Venick was the first lawyer to step to the lectern. He was able to speak at some length about the wrongheadedness of the “serious psychological harm” standard itself. The Court was more interested in the potential alternatives: If a woman didn’t have to show psychological distress to prove a violation of Title VII, what did she have to show? Should the Court require that the harassment “interfere” with a woman’s work performance, as the EEOC urged in its amicus brief? And if so, that raised other questions: Did “interfere” mean that the harassment made the work environment merely “unpleasant,” or did it have to “make the job more difficult”? Did a woman have to show that her work performance diminished in some quantifiable way—such as increased absenteeism, or missed deadlines, or lower performance ratings?
Venick argued against applying an “interference” test because, like the psychological harm requirement, it focused on the woman’s reaction to the harassment rather than the harassment itself, while Title VII was intended to address the employer’s misconduct. Venick told the Court that so long as a woman can show that the harassment was unwelcome, as Vinson required, she has proved that the “terms and conditions” of her employment were “altered,” at which point examination of her subjective response should end. Justice Ginsburg agreed, observing “If you take a similarly situated man and a woman, and the woman is constantly told, you’re a woman, you think like a woman, and her coworker is not told those things, doesn’t that make their job more difficult? Do you need anything further than that? Is it really more complex? The terms and conditions [of employment] aren’t equal if one is being called names and the other isn’t.”19
The bulk of the Court’s examination, Venick argued, should be on whether a hypothetical “reasonable person” would experience the environment as abusive, in the legal sense. Venick argued that meeting this more objective standard would depend on all of the factors that the Court had laid out in Vinson when assessing whether harassment is severe or pervasive: “How often does the conduct occur, who’s perpetrating the conduct, who else was exposed to the conduct, who else joined in the conduct?”
But that standard was just as vague, interjected Justice Scalia. “‘[S]ufficiently severe or pervasive to alter the conditions of employment.’ That is utterly meaningless to me,” he said, “I don’t care if we did say it.” Over laughter from the gallery, he continued, growing more exercised. “All right, there are all of those factors, but how many of them do you need to alter the conditions? How can you tell? What magic event says, oh, the harassment has risen to the level of severity to alter the [working] conditions? . . . Now, the test that says, it affects your work performance, ah, that’s something I can identify!”20 Venick parried for a few more minutes, staunchly contending that Justice Scalia’s proposed standard was too high, and then his time was up.
When Stanley Chernau, the Nashville attorney who had represented Forklift Systems since the start of the case, stepped forward, he had some explaining to do. In the legal brief he had filed in advance of the argument, Chernau had taken the peculiar step of disavowing the Rabidue “psychological injury” requirement that had been the basis for his client’s victory in the Sixth Circuit. Instead, he had argued that the EEOC “interference” standard was the correct one. And because Harris could not show a tangible decline in her work performance, she couldn’t prove that the harassment “interfered” with her ability to do her job—so the ruling in favor of Forklift Systems should stand.21
Chernau’s argument did not go well. Justices Souter and Ginsburg took the lead, confronting the attorney with quotes from the Sixth Circuit’s written opinion in which it stated that psychological harm was a prerequisite for any claim. If the Sixth Circuit had applied the wrong standard of proof—a standard that even Chernau now conceded was incorrect—wasn’t the Court, then, obligated to reverse the Sixth Circuit’s ruling? Chernau responded that the Sixth Circuit’s opinion implied that it would have reached the same result under the “interference” test, so the Court could simply affirm the decision on those grounds instead.22 But the justices were not persuaded.
Justice Ginsburg proceeded to read from the portions of the trial court’s opinion in which the judge agreed that Harris had been subjected to a “continuing pattern of derogatory conduct.” Then she posed a hypothetical to Chernau: “I’m curious, . . . if [the derogatory conduct] had been race-based or religion-based or national origin, and we had a similar inventory of continuous behavior, would your analysis be any different?”
“I think that when you try to—in order to answer—that is a very difficult question to ask—to answer,” Chernau stammered, before finally conceding that no, sex-based harassment and harassment based on any other characteristic should be analyzed the same way.23
When the justices questioned Chernau about his interpretation of what a victim must show in order to satisfy the “interference” test, he declared, “I don’t believe that it is necessary to specifically assert and prove interference with your work performance to be successful” on a harassment claim.
“Oh, well, that’s new!” exclaimed Justice Scalia. “That’s new to me then. You’re changing your position that was in your brief.”24 Chernau floundered for a few more minutes under questioning from Ginsburg and Stevens about the “reasonable person” standard and then his time was up.25
Teresa Harris was thrilled. To her, Venick had emerged the clear winner of the argument. “The difference between what Irwin did and what Chernau did was just like night and day,” she said. “It was unbelievable. I got the vibe of course from Judge Ginsburg—you could tell she was on board—but I got good vibes about [the whole thing].”
After the argument, Venick and Harris headed to the headquarters of the NOW Legal Defense and Education Fund, where they were the guests of honor at a reception attended by women’s rights advocates and civil rights luminaries. If there had been any apprehension among the Washington insiders about Venick’s ability to rise to the occasion, it surely had dissipated; the mood was decidedly celebratory.
* * *
Although Venick may have given the superior performance, it was hard to tell which way the Court was leaning. The reliably liberal justices—Ginsburg and Stevens—had been active participants during the argument, but several justices considered “swing” or conservative votes—such as Kennedy, Rehnquist, and Thomas—had remained silent or asked just a few questions. It was all but impossible to tell what they were thinking about the parties’ arguments.
It didn’t take long to find out. Typically the Court deliberates for at least a few months, but with Harris v. Forklift Systems the Court took just twenty-seven days. Harris got a call from Venick: They had won—and it was unanimous.
“Title VII comes into play before the harassing conduct leads to a nervous breakdown,” wrote the Court.26 In a line that could have been lifted from the APA’s amicus brief, it explained: “A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover”—and here the opinion echoed Justice Ginsburg’s observations at oral argument—“even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion or national origin offends Title VII’s broad rule of workplace equality.”27 (Justice Ginsburg submitted a concurrence amplifying even further her conviction that sex-based disadvantage is no less pernicious than race-based harm—a conviction that had animated her career as a litigator, too.28)
Having rejected the Sixth Circuit’s “serious psychological injury” standard, the Court laid out its chosen alternative. After reaffirming Vinson’s ban on harassing conduct that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” it noted that the “appalling conduct” by Sidney Taylor toward Mechelle Vinson in that case did not “mark the boundary” of what is illegal.
That boundary instead was the point at which a hypothetical reasonable person would find the work environment hostile or abusive. The Court cautioned that there was no “mathematically precise test” for meeting that standard and conceded that its ruling asked the lower courts to, in effect, make up as they went along the kinds of circumstances that a reasonable person might find harassing:
We need not answer today all the potential questions [our decision] raises. . . . But we can say that whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.29
(Despite the lengthy questioning at oral argument as to how to prove such “interference,” the Court did not address this in the opinion.) The Court concluded by emphasizing that although “psychological harm, like any other factor, may be taken into account” when assessing whether a work environment is illegally hostile, “no single factor is required.”30
In practical terms, the Harris ruling invalidated the Sixth Circuit’s decision in Rabidue as well as any other appeals court decisions that had followed it by imposing the “psychological harm” requirement in harassment cases. By extension, the Court also overturned the Sixth Circuit’s decision upholding the trial court’s ruling in Forklift Systems’ favor. Because Harris should not have had to prove Charles Hardy’s harassment caused psychological harm, the justices directed that her case return to the district court for renewed consideration.
A jubilant Harris immediately joined Venick at his office, where they read the faxed opinion together and sat for multiple interviews with local and national news outlets. “And then,” Venick recalled with a smile, “we went downtown and had a drink.”
Harris was hailed by civil rights advocates around the country for her bravery in coming forward and making the Court’s ruling possible. She even got a congratulatory phone call from Anita Hill, whose testimony during the Thomas confirmation hearings Harris had watched vigilantly and with mounting anger at the Senate Judiciary Committee questioners. (“I mean, just based on my own experience, who would make up something like that? Where does it get you?”) The realization that she had helped millions of women she would never meet was hard to comprehend, but gratifying. “[P]eople would be pretty naïve to believe that women don’t get harassed in the workplace, because they do, and there’s still a lot of bigotry in the workplace, and all those sorts of things,” she said. “However, I think that my case probably makes it easier for women to do something about it. And for that I’m grateful, and I’m glad.”
* * *
After the Supreme Court sent Teresa Harris’s case back to the trial court in Tennessee, the judge issued a new ruling, this time in Harris’s favor. He ordered Forklift Systems to pay her $151,435, representing her lost income after Hardy’s harassment forced her to quit, as well as her accumulated legal fees. He also ordered the company to put in place a written policy against sexual harassment. Harris and Venick disagreed with the way the judge calculated her back wages, considering them too low, while Forklift Systems disagreed with the ruling entirely. But rather than spend more time and money on an appeal, the parties agreed to settle the case for an undisclosed amount.
By the time of the Supreme Court’s decision, Harris had graduated from nursing school and been working in the bone marrow transplant unit at Vanderbilt Hospital for close to a year. She had not told her coworkers about the case, even when she took time off to travel to Washington for the oral argument. But when the decision came out and Harris’s name and photograph were all over the news, her colleagues were supportive, to her pleasant surprise, offering congratulations and teasingly scolding her for having kept the case to herself for so long.
There was one aspect of the Supreme Court’s decision that Harris savored privately, though, one that was especially sweet, given her secret pretrial meeting with Charles Hardy three years earlier. The author of the Court’s opinion in Harris v. Forklift Systems was Justice Sandra Day O’Connor.