Saturday, October 14, 2017

Meritor Savings Bank v. Vinson: Three Decades Later

In the wake of the seemingly endless stream of news reports about the egregious sexual harassment experienced by many women while on the job, the Washington Post has this profile about Mechelle Vinson, a bank teller who was sexually harassed by her boss and took her case all the way to the Supreme Court in 1986. Thanks to her fortitude, the Supreme Court recognized for the first time, in Meritor Savings Bank v. Vinson, that employees are protected against discrimination not only with respect to the economic benefits of employment but also as to their work environment. 

In the Post's profile, Vinson described being sexually assaulted by her boss and threatened with termination if she rejected his sexual advances. Before Vinson made it to the Supreme Court, however, the district court judge astoundingly rejected her sexual harassment claim on the grounds that she had voluntarily engaged in sexual relations with her supervisor. Disagreeing, the Supreme Court explained that the district court should have instead asked whether Vinson had indicated by her conduct that her supervisor's sexual advances were unwelcome, not whether she had involuntarily had sex with him. Thankfully, the Supreme Court did not conclude that sexual harassment only violates EEO law if a victim is raped.

The Supreme Court should have also agreed with the court of appeals that Vinson's testimony about her "dress and personal fantasies . . . had no place in this litigation." Unfortunately, the Supreme Court concluded that evidence of Vinson's "sexually provocative speech or dress . . . [was] obviously relevant" in evaluating whether Vinson regarded her supervisor's advances as welcome. Today, I think most of us would agree with the court of appeals -- the way a woman dresses or speaks doesn't show whether she welcomes sexual conduct by male coworkers. So that's some progress, I guess.

Lately, much has been made of the disagreements between the EEOC and the Department of Justice as to the scope of the protections under the EEO laws. Meritor is an even more peculiar case in which the EEOC essentially disagreed with itself. In Meritor, the EEOC took a position contrary to the position it had adopted a few years earlier in its sexual harassment guidelines regarding when an employer is liable for harassment by a supervisor. The reason for the change? As with the current dispute with DOJ, the result was likely political. The EEOC's earlier more employee-friendly position was adopted during the Carter Administration, whereas the latter position was adopted during the Reagan Administration. The EEOC is an independent agency, but the President nominates the Chair. And who was the Chair when the EEOC advanced a narrow theory of liability contrary to its own guidelines? None other than Clarence Thomas. A few years later, when Thomas was nominated for the Supreme Court, Anita Hill accused him of having sexually harassed her while she worked for him at the EEOC. The world is full of interesting coincidences.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.