Equal: Vinson at the Supreme Court

20. At the Supreme Court
Justice Sandra Day O'Connor thoroughly questioned the bank's attorney, Robert Troll, who was forced to concede that if Vinson had brought a case of racial harassment she would not have to lose her job to win her case, and that the same standards should apply to sexual harassment.

O'Connor also began the questioning of Barry. Barry, aided by MacKinnon, told the court that Vinson had pled a pattern of harassment and a hostile environment in the lower courts. Barry had assistance from O'Connor at another point in the argument when she interrupted an exchange with Justice William Rehnquist and gave her an opportunity to point out that she had been denied a free transcript. Rehnquist was committed to a discussion of the evidence of unwelcomeness and the clothes that Vinson wore to work.

Getting caught up in the questioning, Barry twice referred to the California Rules of Evidence. But the general consensus was that Barry had done a terrific job, even with Rehnquist's distractions and Chief Justice Warren Burger's concern that the bank shouldn't be held responsible for the act of the employees.

Despite the hostile environment created by Rehnquist's questioning, the court unanimously supported Vinson in an opinion he wrote. Two days earlier, Rehnquist had been appointed chief justice. Barry assumed that he ruled in her favor because he wanted his appointment confirmed by the Democratic Senate.

The early votes appeared to be in Vinson's favor but the first draft to the Rehnquist opinion surprised the justices. Rehnquist wanted to limit the bank's liability but other justices wanted to apply the same strict liability standard to hostile environment cases as was applied to quid pro quo cases. It didn't seem that Congress would have intended the two Title VII claims to have different standards, Stevens wrote in a memo.

Rehnquist replied that he would be Stevens' sixth vote but not the fifth one. Rehnquist was determined to be in the majority. O'Connor joined with Stevens and Rehnquist followed. But Justices Marshall, Blackmun, Brennan and Stevens concurred in the judgment only, distancing themselves from Rehnquist's refusal to apply strict liability or to define the limits of employer liability.

“We therefore decline the parties' invitation to issue a definitive rule on employer liability, but we do agree with the EEOC that Congress wanted courts to look to agency principles for guidance in this area. While such common law principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency §§ 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability. Ibid.,” wrote Rehnquist.

Vinson eventually settled with the bank and used some of the money to go to nursing school. Her harasser went to jail for embezzlement. Barry went bankrupt but later revived her practice and MacKinnon became a tenured professor of law at the University of Michigan, and, eventually, Minnesota.