, Lillian McCartin, Elisa Rodriguez
Case Study of Meritor v. Vinson, 477 U.S. 57 (1986)
Sexual Harassment and Title VII
The Meritor Savings Bank v. Vinson Case
INTRODUCTION: Women In The Workforce And Sexual Harassment
We learn from the story of Meritor Savings Bank v. Vinson, that sexual harassment, as we know it today is a fairly recent phenomenon. It could be argued that it has only recently entered the public consciousness as a problem, but in actuality, the conduct that we now define as “sexual harassment” has existed for a significantly longer period of time. More specifically, “sexual harassment” is the result of a disparity of power between genders and this disparity has existed for most of America’s history.
However, even if “sexual harassment” has existed for hundreds of years, there have been recent changes in modern America that have brought the problem to the forefront. Most significantly within the last two hundred and fifty years two major shifts have occurred to make women more vulnerable to the inappropriate and damaging discrimination that is defined as “sexual harassment.” First, as recently as 1790 the majority of Americans were “self employed.” When men and women worked side by side, in these conditions, they were family members; husbands and wives, fathers and daughters, mothers and sons, and brothers and sisters. Under these circumstances, the dynamics between the genders were already established and any disparity that resulted from the interaction was not the act of discrimination based on gender per se. As the urban environment began to spread, people began to work for employers and a hundred years later, in 1890, two-thirds of the American population was working outside the home as wageworkers, but initially the majority of those wageworkers were men, more than eighty percent, and women continued to work in the home.
The second shift was the progression of women’s rights; in 1920, the nineteenth amendment to the constitution ratified American women’s right to vote. This marked a significant change in women’s role in society. Slowly the opportunities that were available for women began to increase and women began to enter the workforce at a higher rate. During the next hundred years, more women began to work outside the home as wageworkers and by 1990, women made up about half of the American workforce. However, this was not an easy transition, society’s mores and its understanding of what role women played in society did not progress at the same rate. There was still a disparity of power between the genders and as women entered the workforce one of the ways this disparity began to manifest itself was in the form of “sexual harassment.”
Meritor is a story of how individuals used newly passed legislation, Title VII of the Civil Rights Act of 1964, to change and expand the accepted idea of discrimination based on sex, in order to protect women in their new and vulnerable position in the American workforce.
Early Problems With Sexual Harassment Claims Under Title VII Of The Civil Rights Act
Discrimination against minorities is well documented in this country’s history. Discrimination in the workplace was no exception, where employers’ would rather misuse talent than overlook their prejudices.1 In an attempt to integrate minorities into society and to encourage hiring based on merit, Congress introduced Title VII of the Civil Rights Act of 1964.2 Title VII of the Civil Rights Act prohibits an employer from discriminating against an employee “with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, sex, religion, or national origin.”3 Though women in the workplace long endured discrimination because of their gender, Congress did not initially contemplate “sex” as a class group needing protection under Title VII.4
Before the day Congress passed the Act, House Representative Howard Smith proposed an amendment to prohibit discrimination against another minority—women.5 However, Representative Smith’s addition was not because he empathized with women’s issues, but rather he proposed the amendment as a ploy to defeat the Act’s passage. After some debate, the amendment prohibiting workplace discrimination on the basis of sex passed by a vote of 56 percent in the House.6
Title VII does not mention, let alone define “sexual harassment.” Early claims of sexual harassment as actionable under Title VII failed. In some of the first claims of alleged sexual harassment brought under Title VII, the courts had difficulty reasoning that the sexual misconduct of a male towards a female in the work environment qualified as discrimination based on gender. Courts continually held that the sexual misconduct directed towards an individual was based on sexual desire and not an abuse afflicting a protected class, and therefore the antidiscrimination statute did not cover it.
For example, in 1976 in Tomkins v. Public Service Electric and Gas,7 where a female employee alleged that her supervisor made sexual advances towards her and detained her against her will through economic threats and physical force. The judge reasoned that these types of actions were not within the scope of the Act.
Title VII was enacted in order to remove those artificial barriers to full employment which are based upon unjust and long-encrusted prejudice…It is not intended to make a federal tort remedy for what amounts to physical attack motivated by sexual desire on the part of a supervisor and which happened to occur in a corporate corridor rather than a back alley. In this instance, the supervisor was male and the employee was female. But no immutable principle of psychology compels this alignment of the parties. The gender lines might as easily have been reversed, or even not crossed at all. While sexual desire animated the parties, or at least one of them, the gender of each is incidental to the claim of abuse.8
Therefore, the court concluded that there was no violation of the statute.
Other courts had similar rational for denying women’s allegations of sexual harassment, mainly that these allegations were not discrimination covered by the statute, and that the inappropriate actions by an employer were merely sexual misconduct between two people and the court held that sexual conduct between genders, though not always appropriate, were always normal. In Miller v. Bank of America, 9 where the plaintiff alleged that her supervisor promised her a promotion in exchange for sexual favors and fired her when she refused, the court held that there was no violation of the statute. “The attraction of males to females and females to males is a natural sex phenomenon … it would seem wise for the Courts to refrain from delving into these matters.10
Williams v. Saxbe 11 was one of first courts that held that the inappropriate actions of a supervisor, even if they were motivated by sexual desire were in essence discrimination based on sex. In Williams, the plaintiff alleged that she had a good working relationship with her supervisor until he made a sexual advance towards her, which she rebuffed.12 After the refusal, the supervisor engaged in a pattern of harassment and humiliation, by intentionally limiting the plaintiff’s knowledge regarding activities, actions, and considerations that were significant to her employment.13 The judge, persuaded, held that the plaintiff had been solicited for sexual favors only because she was a women; she would not have been subjected to her supervisor’s demands, but for her sex.14 The William’s court then took the next step, finding that the employer was liable for the actions that constituted sexual discrimination. The supervisor exercised authority as an agent of the employer, the practice and pattern of sexual harassment by the plaintiff’s supervisor, was the action of an agent and constituted an unlawful employment practice of the employer.15
Other courts also began to recognize sexual harassment as an action under Title VII, but only if plaintiffs were able to show that a tangible loss had occurred because of the harassment.16 In 1979, Catherine MacKinnon labeled this form of sexual harassment as quid pro quo harassment actionable under Title VII.17 Thus, quid pro quo harassment occurs when an employer makes sexual demands in exchange for tangible employee benefits.
In 1981, Bundy v. Jackson was the first federal decision that endorsed the EEOC’s position of Title VII liability where insults and propositions create a “sexually hostile environment,” even if the employee lost no tangible job benefits as a result.18 Further, in 1982, Henson v. City of Dundee became the first published federal case where the court applied MacKinnon’s quid pro quo definition as an actionable form of sex discrimination. The Henson court also distinguished quid pro quo claims from hostile environment claims.19 Henson continues to be the decisive case on quid pro quo.
It was not until 1986, in Meritor Savings Bank, FSB v. Vinson that the United States Supreme Court considered for the first time whether, barring a tangible job loss claim, sexual harassment falls within the purview of Title VII.20
Meritor Savings Bank v. Vinson: The Litigants and Lawyers
Mechelle Vinson’s Story
Mechelle Vinson met Sidney Taylor on the street when she was 19 years old. After a casual conversation, he suggested that she apply for a job at his bank. The following day she went to the bank, filled out an application, and he hired her later that same day. On September 9, 1974, she began work as a teller-trainee. Vinson said that during the training process Taylor exhibited a “fatherly” concern for her. Not only did he support her at work, but he went out of his way to help her in other ways as well. For instance, he gave her money to rent an apartment, shortly after she began to work at the bank, he took her and other bank employee out to lunch, and on occasion Vinson and Taylor would share an early dinner together after the branch closed.
According to Vinson, Taylor’s behavior began to change in May 1975, six month after she began her employment at the bank. After a day at work, Taylor took Vinson out to dinner. At dinner Taylor pointed out how good he had been to her and how she owed him. Vinson was uncomfortable, so she thanked him and agreed that he had been good to her. He said he did not want a simple thank you; he wanted to sleep with her. She replied that she was thankful for his help, but she felt that she should not sleep with him. He stated that he had hired her, so he could fire her as well. Fearing for her job, she accompanied him to a hotel, where after further coercing by Taylor, Vinson finally submitted to Taylor’s demands, though she did not specifically consent to the intercourse.
After the initial encounter, Taylor made regular demands for sexual favors from Vinson. Vinson estimated that she had intercourse with Taylor between 40 and 50 times over the next three years. She had intercourse with him after bank hours and during, in the bank vault, in the basement, and in other rooms of the bank. Taylor also fondled Vinson’s buttocks and breasts on a daily basis and sometimes in the presence of other employees and customers, but outside of their actual view. He would make lewd and suggestive comments to her in front of other bank employees. He followed her to the bathroom and exposed himself to her. Several times Taylor’s actions actually amounted to assault and he raped her. On one occasion, the assault forced Vinson to seek medical attention.
Sidney Taylor’s Story
Taylor was the father of seven children, the deacon in his church and well respected in the community. He had worked up from a janitor at the bank to manger of the branch office. Taylor denied all the allegations and he insisted that he had never had a sexual relationship with Vinson, never asked her to engage in a sexual relationship, he never fondled her, or made lewd comments to her. Instead, Taylor asserted that Vinson had made the false allegations as retribution because he had rebuffed her sexual advances. He admitted to taking Vinson to lunch with other bank employees on several occasions, but denied ever having dinner with Vinson or dining with her alone. He stated that Vinson’s conduct and actions at work were overtly sexual and on several occasions, Taylor had to send Vinson home because she was dressed inappropriately. Additionally, Taylor stated that a few months before Vinson’s termination for excessive absences, Vinson and Taylor had a dispute regarding a promotion of another employee. Taylor suggested that this dispute was another motivation for Vinson’s false allegations.
Catherine MacKinnon’s Involvement (co-counsel for Mechelle Vinson)
In 1979, several years before Meritor Savings Bank v. Vinson, Catherine MacKinnon wrote Sexual Harassment of Working Women.21 She argued that sexual harassment was a form of sex discrimination under Title VII of the Civil Rights Act of 1964. She distinguished between two types of sexual harassment quid pro quo “in which sexual compliance is exchange, or proposed to be exchanged for an employment opportunity and the type of harassment that “arises when sexual harassment is a persistent condition of work.22 In 1980, the Equal Employment Opportunity Commission followed MacKinnon’s framework in adopting guidelines prohibiting sexual harassment by prohibiting both quid pro quo harassment and hostile work environment harassment. Catherine MacKinnon became co-counsel on Meritor Savings Bank, writing the respondent, Mechelle Vinson’s brief.
In addition to her work on Meritor Savings Bank, MacKinnon is known for her views on pornography, specifically that pornography is a form of sex discrimination. She drafted an anti-pornography civil rights ordinance as an amendment to the Minneapolis city civil right ordinance. The amendment defined pornography as a civil rights violation against women and allowed women to sue producers and distributors for damages in civil court. Although the law was twice passed by the Minneapolis city council, the mayor ultimately vetoed it in 1983. The Seventh Circuit Court of Appeals later ruled the ordinance unconstitutional.
Meritor Savings Bank v. Vinson: Case Analysis
As discussed above, Michelle Vinson was an employee of Meritor Savings Bank (the “Bank”). In 1979, five years after working at the Bank, Ms. Vinson filed a sexual harassment sex discrimination claim against her supervisor, Sidney Taylor, and the Bank upon receiving a letter terminating her employment. Taylor, also the Vice President and Branch Manager of the Bank, repeatedly coerced Ms. Vinson into having sexual relations with him and demanded sexual favors while at work.23 Ms. Vinson claimed that she did not welcome the advances but acquiesced because she was afraid of losing her job.24
The trial court denied relief because Ms. Vinson was “not required to grant Taylor . . . sexual favors as a condition of either her employment or in order to obtain promotion” and because upper management did not have notice of Taylor’s misconduct.25 The Court of Appeals for the District of Columbia following Bundy reversed and remanded.26 It noted that unwelcome sexual advances are actionable under Title VII when they create an “intimidating, hostile, or offensive working environment.”27 But before the district court could take further action on remand, the Supreme Court accepted the case for review.
The primary issues presented were whether sexual harassment was unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 and whether hostile environment harassment was actionable under Title VII of the Civil Rights Act, even in the absence of a tangible economic loss.
Justice Rehnquist, writing for the Supreme Court, stated that ‟ [w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.”28 The Meritor court concluded that: (1) sexual harassment that creates a hostile and abusive work environment violates Title VII, even in the absence of tangible adverse economic consequences for the employee; and (2) an employee’s “voluntary” submission to an employer’s sexual advances will not defeat a harassment claim because the true issue is whether the advances were “unwelcome.”29
Hostile Environment Harassment is Actionable Under Title VII
First, the Court addressed the Bank’s argument that Congress’ intent in passing Title VII was to relieve “‘tangible loss’ of ‘an economic character’” and not “purely psychological aspects of the workplace environment.”30 The Court rejected the Bank’s approach and instead agreed with the EEOC’s conclusion that harassment leading to “so-called ‘hostile environment’ (i.e., non quid pro quo) harassment,” violates Title VII.31 Title VII prohibits discrimination in “terms, conditions, and privileges of employment,” which gave rise to “congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment.”
The EEOC Guidelines stood for the proposition that if 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” then that conduct violates Title VII.32 In its stance, the EEOC relied on race discrimination cases holding that Title VII “affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.”33 The Court noted that although EEOC Guidelines are not controlling, they “were fully consistent with . . . the existing case law.” Thus, Title VII indeed prohibits harassment even if the harassment causes no economic injury.
The Court also relied on the Fifth’s Circuit holding in Rogers v. EEOC. In Rogers, the employer created a discriminatory work environment by treating its clients in a discriminatory manner.34 The Rogers court established hostile work environment as actionable under Title VII.35 The Court, therefore, reasoned that it made sense to apply the principle of hostile work environment to sexual discrimination cases on the contention that the plaintiff can establish the discrimination based on sex created a hostile work environment.
“Voluntary” Submission to Advances Does Not Eliminate Unwelcomeness
Second, the Supreme Court held that “voluntary” submission to sexual advances does not render the “unwelcomeness” factor moot.36 The paramount issue in a hostile environment claim is not whether the recipient voluntarily submitted herself to sexual advances, but whether the sexual advances or behavior were ‟unwelcome.”37 The court reasoned:
[T]he fact that sex-related conduct was ‘voluntary,’ in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. . . . The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.38
Therefore, sexual advances may be unwelcome even if the employee acquiesces. However, as discussed further below, the unwelcomeness requirement is nevertheless subject to criticism.
The Court did make clear, however, that not all workplace harassment ‟affects ‘a term, condition, or privilege’ of employment within the meaning of Title VII.”39 For example, hostile work environment harassment claims are actionable only if harassment is ‟sufficiently severe or pervasive to alter the conditions of [the complainant’s] employment and create an abusive working environment.”40 The Court additionally emphasized that in order to prevail on a workplace harassment claim, the employee must one way or another communicate to the harasser that the sexual advances or behavior are unwelcome.41 Further, employers are not automatically liable for harassment by a supervisor in a hostile environment case.42 Justice Marshall, in his concurring opinion, criticized the court for not holding the employer strictly liable.43 Instead, the majority held that courts would need to look into traditional agency principles to determine liability.44
In ruling that sexual harassment is an actionable form of sex discrimination under Title VII, the Supreme Court took a significant step forward in recognizing the hardship women endured in the workforce for many years. Under this decision, an employer can be held liable for sexual harassment pursuant to Title VII. The plaintiff needs to prove that the (1) unwelcome behavior (2) was because of the plaintiff’s sex, (3) the unwelcome behavior altered the conditions of employment, and (4) the employer is accountable according to appropriate agency laws.
At first glance, these factors seem reasonable. However, a closer look reveals that the Court ruled conservatively. For example, the Court placed a higher burden of proof on the plaintiff in successfully claiming hostile work environment sexual harassment as opposed to a quid pro quo harassment claim. Additionally, the Court requires a plaintiff to exhibit unwelcomness. Together with its holding that employers are not automatically liable for sexual harassment, the Court practically leaped back to square one. Sexual harassment in the workplace continues to be a prevalent and widespread problem today.
The Unwelcomeness Requirement
As stated above, one of the elements established by the Supreme Court’s opinion in Meritor was the “unwelcomeness” requirement. Legal scholars argue that the “unwelcomeness” requirement places an unfair focus on the victim. In an article in entitled Not Quite Rights: How the Unwelcomeness Element in Sexual Harassment Law Undermines Title VII’s Transformative Potential, 45 Grace S. Ho argues that the additional element sets an unnecessary precedent: “The unwelcomeness requirement enshrines into law a troubling form of reasoning: Since a woman generally welcomes sexual behavior, it is most efficient to require the exceptional woman who does not welcome such behavior to make her difference known.” In Meritor, the Supreme Court held that that it was error to focus on the “voluntariness” of Vinson’s participation in the sexual actions, but rather to look at her conduct to determine if the alleged sexual advances were welcome. Therefore, the court overruled the appellate court, which held that the evidence as to Vinson’s dress and her personal fantasies had no place in the litigation. In its decision, the Supreme Court determined that, with the additional element of “unwelcome,” Vinson’s speech and dress were relevant in order to determine whether Taylor’s particular sexual advances were indeed unwelcome.
When considering Ho’s argument, the apparent “plaintiff friendly” holding of the Supreme Court in Meritor, needs to be reevaluated. Does the unwelcomeness requirement actually undermine the ability of future plaintiffs to sue if they are unable to prove or show that the advances from the harassers were unwelcome? In cases alleging harassment on the basis of race, color, national origin, or religion, plaintiffs do not need to demonstrate that the harassment was unwelcome in order to meet their initial burden of proof. In other cases of discrimination, it is understood that racial and religious slurs are always unwelcome. Is sexual harassment as a form of discrimination so significantly different from other forms of discrimination that it is necessary to have the added element of “unwelcomeness” or does the additional element put an inappropriate focus on the victim, and therefore continues to limit the ability to bring a sexual harassment claim under Title VII?
When the holding of Meritor is considered in this light, all the issues that complicate sexual harassment suits are highlighted. What actions actually constitute “sexual harassment?” Is there an actual standard that can be applied to all circumstances or should each case always be looked at individually? Were the initial reactions of the courts on point, that there is something unique to sexual relations, that therefore it is unrealistic and potentially harmful to allow plaintiffs to bring claims under Title VII? Or, is the effect of inappropriate advances in the work environment always an abuse of power and it is necessary for courts to recognize these actions as sexual discrimination, which is strictly prohibited by Title VII. Therefore, the unique element of the “unwelcomeness” requirement quietly asserts all the problems that accompany sexual harassment cases.
The Future Of Sexual Harassment Claims Under Title VII Of The Civil Rights Act
There have been several pivotal cases since Meritor, which have refined the sexual harassment causes of actions possible under Title VII. Recently, courts have questioned whether Title VII can be applied in cases of same-sex harassment, transgender discrimination, and sexual orientation discrimination. In Oncale v. Sundowner Offshore Services, Inc., the Supreme Court ruled on the applicability of Title VII to a same-sex work environment. 46
In Oncale, other men harassed a man during the course of his employment on an oilrig, staffed only by men.47 The defendants forcibly subjected him to sex-related, humiliating actions.48 Oncale was also physically assaulted in a sexual manner and threatened with rape.49 The court asked whether there could be a violation of Title VII when the harasser and the harassed are of the same sex.50 The Court ultimately found that the gender and motivation of the harassment was of no consequence. “Harassing conduct need not be motivated by sexual desire to support an inference of discrimination based on sex.” 51
Plaintiffs seeking relief under Title VII have several options for advancing a claim under Title VII. First, a plaintiff can show that the harassment was “motivated by sexual desire,” which required “credible evidence that the harasser was homosexual.” 52 This cannot be used by plaintiffs who are harassed because of their own sexual orientation, and not their harasser’s.53 Second, an inference of sexual discrimination can occur when harassment contains “sex-specific and derogatory terms by [the same sex harasser] as to make it clear that the harasser is motivated by general hostility to the presence of [his own sex] in the workplace.”54 Sexual orientation discrimination is generally not motivated by this type of hostility, thus such a claim is hard to advance.55 Finally, the court held that the Plaintiff may “offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. 56 This would be impossible to establish in a single-sex working environment and would be vulnerable to an argument that the harasser treated heterosexual men and women equally, which would undermine an argument that the harassment occurred because of sex.
In 2002, the Ninth Circuit applied Oncale to another same-sex harassment case. In Rene v. MGM Grand Hotel Inc., other male employees in a hotel harassed a homosexual man. 57 Rene was openly gay and worked with other male butlers on the 29 floor of the MGM Grand Hotel in Las Vegas.th The harassment included his coworkers grabbing his crotch, caressing him offensively, forcing him to look at pictures of men having sex and giving him sexually oriented “joke” gifts.58 Rene sued in federal court in 1997 alleging sexual harassment and retaliatory discharge in violation of Title VII.59 The district judge granted MGM summary judgment based on their claim that Rene’s suit was based on sexual orientation discrimination not sexual harassment.60 The Ninth Circuit court ultimately entered a plurality opinion for the Plaintiff. The plurality concluded that “grabbing, poking, [or] rubbing … areas of the body linked to sexuality is inescapably because of sex.” 61
Although the rulings in Oncale and Rene give plaintiffs some causes of action under Title VII, they are severely limited. First, neither holding allows for an employment discrimination claim based on sexual orientation. Second, the sex-specific harassment theory prevalent in Rene provides no protection for gay people harassed because of their sexual orientation unless that harassment clearly implicates their sex organs or other sex specific characteristics. The court in Rene indicates that the Plaintiff would have had no cause of action under Title VII if his tormentors grabbed his elbow of poked their fingers in his eye, rather than grabbing his crotch and poking their fingers in his anus. 62
Such limitations are clear in Bibby v. Philadelphia Coca-Cola Bottling where the Third Circuit Court found that harassment directed at a gay male employee was not actionable under Title VII.63 Bibby’s coworkers yelled at him, threw him against a row of lockers, trapped him using a forklift and wrote graffiti about him on the walls.64 They also made comments such as, “everyone knows you’re a faggot.”65 However, the court ruled that since none of these incidents clearly implicated Bibby’s sex and “no reasonable finder of fact could reach the conclusion that he was discriminated against because he was a man,” he was not eligible for relief under Title VII.66
Transgender and transsexual discrimination is another area of relative uncertainty and potential expansion under Title VII. In 1989, the Supreme Court in Price Waterhouse v. Hopkins made gender stereotyping a legitimate action under Title VII.67 In Price Waterhouse v. Hopkins, Hopkins alleged that she had been denied a promotion because she failed to conform to sex stereotypes; specifically that she was not feminine enough.68 The Supreme Court held that discrimination based on a person’s failure to conform to sex stereotypes was sex discrimination under Title VII.69
The Price Waterhouse approach to discrimination under Title VII has been used for gay and lesbian plaintiffs as well as transsexual plaintiffs. When applied to sexual orientation, this case has been used to assert that people who discriminate based on sexual orientation are really discriminating against non-conformity to gender stereotypes – that lesbians are perceived as being too macho and gay men too effeminate. This type of sex stereotyping grants Title VII protection only to men and women who openly defy sex stereotypes and does not protect those who embrace more traditional gender roles.
In Smith v. City of Salem, the court clearly established that Price Waterhouse could be applied to certain cases of employment discrimination involving transgendered individuals under Title VII.70 In Smith, the plaintiff was a male to female transsexual who was discriminated against due to his failure to conform to sex stereotypes concerning how a man should look and behave on a regular basis. The court held that Price Waterhouse extended “sex” to include “gender which refers to “socially constructed norms associated with a person’s sex. 71 The Court reasoned that if women, as in Price Waterhouse, are protected from discrimination on the basis of appearing too masculine, then likewise men who appear too feminine should also be protected.72 Thus, the court established that a transgendered person who was discriminated against for violating a gender norm was being discriminated against under Title VII.73
Despite the ruling in Smith, the Price Waterhouse approach to discrimination under Title VII provided transgender or transsexual plaintiffs only limited relief. In Schroer v. Billington, the Court held that Price Waterhouse did not apply 74 The Plaintiff, Schroer, applied for a position as a man, explaining after he had been accepted for the position that he was diagnosed with gender dysphoria and would present himself as a woman once employed.75 Schroer even showed the employer pictures of himself dressed as a woman. 76 The next day the company called the Schroer and told him “it wasn’t going to work.” 77 Schroer filed suit alleging sex discrimination under Title VII.78 The court held that since the Plaintiff wanted to present as a traditional female, he did not violate gender stereotypes and therefore did not have a claim under Title VII.79 The court reasoned that the Schroer was fired because he was transgendered and not because he violated gender norms. Thus, the court narrowly construed Price Waterhouse to be more about gender stereotyping than biological sex stereotyping.
Currently, Title VII does not provide relief for a person who is harassed based solely on their sexual orientation or their status as transgendered. Plaintiffs must generally prove that they were harassed in a manner which was undeniably sexual, motivated by sex or that the discrimination stemmed from their violation of a gender stereotype. Thus, even after the definitive ruling in Oncale that same-sex harassment is prohibited by Title VII, a cause of action is mainly a protection for heterosexual men or women who are harassed or taunted as a means of creating a hostile work environment that is illegal under Title VII.
In the face of this set back, it seems almost impossible that the actions of an “equal opportunity” harasser violate sex discrimination laws under Title VII if no differential treatment between men and women can be found. However, this is not a new issue. The 1975 Arizona case of Corne v. Bausch & Lomb, was the first court to acknowledge this conclusion.80 The Arizona district court exclaimed that it would be "ludicrous" to call sexual harassment sex discrimination, since "to do so would mean that if the conduct complained of [male sexual advances on females] was directed equally on males there would be no basis for suit."81 Thus, the court acknowledged that because bisexual orientation exists, sexual harassment claims would not fit well under Title VII's "because of … sex" requirement.
Courts continuously acknowledged that under the Title VII "because of … sex" requirement, any superior who harassed both men and women would escape liability. Even the D.C. Court of Appeals in the Vinson v. Meritor case expressed this conclusion, stating that
[T]his court holds that only the differentiating libido runs afoul of Title VII, and bisexual harassment, however blatant and however offensive and disturbing, is legally permissible. Had Congress been aiming at sexual harassment, it seems unlikely that a woman would be protected from unwelcome heterosexual or lesbian advances but left unprotected when a bisexual attacks. That bizarre result suggests that Congress was not thinking of individual harassment at all but of discrimination in conditions of employment because of gender.82
But in 1997, the Seventh Circuit in Doe by Doe v. City of Belleville explained harassment as inherently connected with the victim’s gender, regardless of who else the harasser targets. The court reasoned that bisexual harassment could not be a defense to liability, stating:
Regardless of why the harasser has targeted the woman, her gender has become inextricably intertwined with the harassment. . . It would not seem to matter that the harasser might simultaneously be harassing a male co-worker with comparable epithets and comparable physical molestation. When a male employee’s testicles are grabbed, his torment might be comparable, but the point is that he experiences that harassment as a man, not just as a worker, and she as a woman. In each case, the victim’s gender not only supplies the lexicon of the harassment, it affects how he or she will experience that harassment[.]"83
While the Seventh Circuit’s decision in Belleville seemed somewhat promising, the Supreme Court’s holding in Oncale subsequently abrogated any prospect of Title VII protecting everyone from workplace harassment.
The Seventh Circuit’s post-Oncale decision in Holman v. State of Indiana, further elaborated that Title VII does not protect employees from an employer who harasses both men and women.84 Quoting Oncale, the Holman court noted, “Title VII does not cover the ‘equal opportunity’ or ‘bisexual’ harasser . . . because such a person is not discriminating on the basis of sex.”85 Hence, courts continue to grapple with how to hold that sexual harassment is "because of sex" when a harasser targets both men and women.
The Supreme Court has yet to make a definitive decision whether bisexual harassment constitutes sex discrimination under Title VII of the Civil Rights Act. Many courts have asserted in dicta that bisexual harassment is not actionable under Title VII because the employee would still have been harassed if she were a different gender. In the meantime, employers can get away with sexual harassment upon claiming that the perpetrator harassed both genders. Thus, the opportunity may be ripe for civil rights activists to either use litigation as a tool to mend the holes of Title VII or to lobby for legislation change. Either way, we need a policy that can at least impose some boundary conditions on equal opportunity harassment.
The Meritor case expanded the idea of sexual harassment by allowing a plaintiff to bring a claim under Title VII when she simply suffered discrimination in the work place, regardless of a tangible loss of employment benefits. However, the Supreme Court’s holding also limited the ability for a plaintiff to bring a case, by placing a higher burden of proof on the plaintiff, namely proving that the advances were unwelcome. Additionally, the court failed to clearly define what conduct constituted sexual harassment. As much as the holding benefited Mechelle Vinson and other plaintiffs with similar stories, the case further muddied the issues surrounding sexual harassment and failed to effectively set the define sexual harassment. The complicated issues that surround sexual harassment are still open and live; and it is not clear if further litigation can solve the remaining problems.