Tuesday, September 22, 2009

Chapter 14 of Equal: Mechelle Vinson goes to trial

Vinson's case landed in the lap of a new lawyer named Patricia Barry, who had a fledgling law practice in D.C., when her lawyer decided to move to Florida. Barry read MacKinnon's book, “Sexual Harassment of Working Women,” which had just been published that year, 1979. The book provided a blueprint for harassment litigation, based on a three crucial victories in district courts, two in D.C. In Williams v. Saxbe, Judge Charles Richel held that sexual advances coupled with retaliation for their refusal constituted actionable sex discrimination.

Meanwhile, Barnes was on its 19-month journey. Robinson was for Barnes but Judge MacKinnon and Chief Judge David Bazelon weren't. But Judge MacKinnon said he might change his mind if a better job of legislative and statutory analysis could be done than was done by the litigants. But Judge MacKinnon was concerned about employers' vicarious liability. He laid out steps for employers to follow and then concluded that Barnes' case could proceed, in the end concurring with Bazelon and Robinson. Robinson was apparently affected by Catharine MacKinnon's paper, although that cannot be confirmed.

After Barnes, other courts began ruling for women on the issue of quid pro quo sexual harassment.

Barry could not get the evidence admitted in Vinson that she thought would show a pattern of harassment in the bank's working environment. The District Court opinion would eventually define sexual harassment as a quid pro quo but not a hostile environment. However, the judge did include a footnote referencing his refusal to allow evidence of a pattern and practice of harassment, which would be crucial in coming years. He also made two other key findings of fact concerning notice to the bank and voluntariness. Barry and Vinson decided to appeal.

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