O’Connor: “The lower court cases on racial harassment imputes the supervisor’s knowledge to the company.”
And it was the supervisor who was doing the harassing, she continued. Wasn’t it the supervisor’s job to care for the employees, O’Connor asked? He knew what he was doing. Wouldn’t that be notice to the bank?
The listener can almost hear the bank’s advocate panting on the recording of the oral argument by the time she finished with him.
When the time came, Justice O’Connor joined a unanimous court to hold that Vinson should have another chance to prove the harassment, which would be actionable, if proved, even if she didn’t get fired because of it. Harassment that creates a hostile work environment, unheard of ten years before, was now ensconced firmly in the prohibitions of the Civil Rights Act. That was the easy part. What divided the Court was the question of whether the bank was strictly liable for its supervisor’s harassment of the underling. Whether the big boss is liable in cases like this is usually what matters. If sexual harassment were ever going to stop, employers would have to stop it. If they were strictly liable, they’d do something to control sexual harassment in their workplace. Ambitious, frightened, vulnerable women could not police the workplace and the jerk at the branch office was unlikely to be able to pay meaningful damages.
Events followed a course drearily familiar to the liberals on the Burger Court. First, Chief Justice Burger switched his vote from supporting the bank at conference when he saw that only one of the other justices, Powell, agreed with him. Then, being in the majority, he got the right to assign the opinion. He assigned it to the justice in the majority least sympathetic to Vinson, William Rehnquist. On April 22, Rehnquist circulated a draft opinion so hostile to Vinson that even Justice Powell abandoned his dissent and agreed to sign on.
Although Vinson would get a chance to prove harassment, unlike employers in racial harassment cases, the bank would not be strictly liable. Vinson would have to prove the bank was liable under “ordinary principles of agency,” a complex body of law about when employers are responsible for the acts of their agents, depending on what the employer knew or should have known about what the employee was doing. So in a case like Vinson’s she would have to show the bank knew about Taylor’s bizarre behavior, which would be almost impossible to prove. Or she could show that the bank had an obligation to monitor its employees in some way so that it would know when something so untoward was going on. Since sexual harassment was just being acknowledged as an offense, what the courts would say employers “should have known” was completely, well, unknown. Either way, her chance of winning would be much smaller than if the law just laid the burden of misbehavior strictly on the employer, the institution with the best chance to stop it.
Predictably, the four liberal justices—Brennan, Marshall, Blackmun, and Stevens—withdrew their support from Rehnquist’s opinion. They thought the bank should be liable to its female employee if she was sexually harassed in the workplace, period. Justice Marshall wrote an opinion he characterized as concurring only in the actual judgment, as far from agreement as you can get while still supporting the Court’s remanding Vinson’s case for a new trial. Four to four: all eyes turned to Sandra Day O’Connor. Two weeks later she voted with Rehnquist, making five to limit sexual harassment claims against an employer. Vinson would have to prove not only that Taylor harassed her, but that the bank knew or should have known she was being harassed. Certainly the bank wasn’t going to volunteer to help her out. As of 1986, seven years after Vinson sued, Sidney Taylor was still managing the branch.
O’Connor’s clerk at the time, Stephen Gilles, speculates that she may have had a complicated and clever agenda in voting with the conservatives. “Maybe she thought that this case is so awful, even the conservatives are willing to buy into the theory of sexual harassment, but if I switch sides and vote with the liberals, they might write a few concurrences, and [it will be harder to] hold a coalition together.” If the conservatives dissented, Meritor Savings Bank v. Vinson would have been 5–4, rather than unanimous on the harassment matter. A 5–4 decision establishing sexual harassment as actionable would then be very vulnerable if any one of the liberal justices retired, just like Roe began to hang by a thread over the years. Better a unanimous Court for sexual harassment and let the liability thing play out over the future.
In the end, like so many of Justice O’Connor’s tightfisted votes for equality, the decision did help women—in a tightfisted way. From the highest level of judicial authority, sexual harassment was now actionable, as racial harassment had been in the past, even if the offender just made the victim’s daily life a misery rather than, say, firing her. The bank settled with Mechelle Vinson, and she used some of the money to go to nursing school and had a long good life. Years later, in 1988, Sidney Taylor was convicted of embezzlement from one of the bank’s depositors, and, finally, the bank noticed him, and he lost his job. Burger was retiring, and Justice Rehnquist, who, gossip had it, did not want to be seen as defending sexist behavior just as he was up to replace Burger for the job of chief, got to be in the majority. But the lower courts struggled for years to figure out what an employee had to prove in order to hold an employer liable in a pure sexual harassment case under “principles of agency law.” One case, heard by all eleven judges of the court of appeals in Chicago, generated eight different opinions! Please, Justice O’Connor, what should we be doing?
Right before Warren Burger retired, O’Connor’s angel, John Driggs of the Lake Powell houseboat trip, came to D.C. with his wife to visit the O’Connors. As they were sitting at breakfast, Justice O’Connor was getting ready to go to work. Say, she said to her guests, would you like to go to the Court and see a session? Who would say no? As they sat in their seats in the justices’ guest section, a messenger arrived with a note from the chief inviting them to come to his chambers after the session. When the Driggses arrived, Chief Justice Burger was waiting to crow over the great outcome of their houseboat trip all those years before. What an addition Justice O’Connor made to the court, he said. Why, he made it his business to use his powers as the chief to single her out to write the opinions in really important cases because he thought so highly of her. It was an extraordinary admission from Burger, who had long been accused of manipulating the assignment power, in violation of the unspoken norms of the institution he headed. Only thing is: it wasn’t true. Even after five years on the tribunal, and numerous instances where the chief unexpectedly changed his position when he saw he would be on the losing side, Burger never assigned O’Connor to write the Court’s opinion in any big cases. As one of her clerks said sarcastically, remembering those years, “Oh, boy, another tax case! Thanks, Justice Burger.” In 1986, William Rehnquist took the retiring Warren Burger’s place, and President Reagan filled the Supreme Court vacancy with the conservative appeals court judge Antonin Scalia.
FINESSING THE DIVIDE ON AFFIRMATIVE ACTION
Women were always bit players in the affirmative action drama. Affirmative action was the easiest target in the backlash against racial civil rights. By the time Sheriff Bull Connor’s Birmingham dogs and fire hoses had consumed the evening news in the mid-’60s, it was hard to find a mainstream voice calling for a return to legal segregation. But social patterns outside the law—residential segregation, job seniority, a legacy of impoverishment dating back to slavery—ensured that most racial segregation survived without the lawman’s help.
But when institutions such as state colleges started seeking to overcome that legacy with programs like affirmative action, a robust and self-righteous resistance arose almost overnight. Preference based on race? For shame! Affirmative action had everything a resistance movement could ask for. The programs, at places such as the University of California medical school, disadvantaged smart white men; the first plaintiff, Allan Bakke, looked just like the political and cultural opinion makers of the day. At the other end of the spectrum, the workplace programs disadvantaged white w
orking-class males, the prime target of the Nixon political strategy, later the so-called Reagan Democrats. Think tanks to challenge affirmative action sprang up like mushrooms.
The first cases—and almost all of the cases for the next three decades—focused on race. Bakke challenged the University of California’s consideration of race in higher education, and a steelworker named Weber challenged a joint employer-union training program designed to put more black people in skilled craft jobs. The affirmative action cases badly splintered the Court, with Powell and Stewart swinging back and forth between supporting and opposing it. There was never a majority to embrace affirmative action wholeheartedly as a way of rectifying the past or reshaping the future. But neither was there a majority to condemn it wholeheartedly as a violation of white men’s civil rights. The justices parsed the issues so finely—had the employer actually committed past violations; was the employer public or private; was the affirmative action in hiring or firing—that no case ever gave guidance for future decisions. The first affirmative action case, Bakke, did not command a majority for any one opinion. It was decided, technically, 4–1–4. What a mess.
Five years into O’Connor’s tenure, the first women’s affirmative action case, Johnson v. Santa Clara Transportation Authority, came before the Court. The Transportation Authority had adopted an affirmative action plan allowing sex to be considered as a factor in promotion; shortly thereafter, it promoted the first woman in its history to the position of head dispatcher, lowering the ratio of men to women in that job category from 238:0 to 237:1. Johnson, a man who had scored two points higher than the woman promoted on the graded interview, filed a lawsuit, claiming the affirmative action was actually reverse discrimination, in violation of the Civil Rights Act.
Affirmative action was always something of a problem for legal feminism. Ginsburg’s great victories often challenged schemes that seemed to benefit women such as giving them preference for survivor’s benefits or creating a tax break for widows. But Ginsburg was pretty clear that affirmative action, like all law governing women, had to be seen in context. Over history, all that good, beneficial stuff such as putting a cap on the maximum hours women could work and excusing them from jury service just kept women in a cage. When women were shut out from good jobs, including the job of citizenship, and expected to be caregivers, safe drivers, and worse, stereotyped as inferior, they were not benefiting from the so-called benefits. Her objective was to open the gates.
Where, however, the effect of affirmative action was not to seal women into old models of virtue and dependency, but to open new worlds, she was quite willing to contemplate its virtues. Especially if the affirmative action followed a long period when the employer, for example, engaged in practices that covertly excluded women. A particular bête noire of hers was the oral interview, exactly what kept the woman down in the Johnson case.
When the justices voted in Johnson, the liberal bloc of four—Brennan, Marshall, Blackmun, and Stevens—had attracted O’Connor and Powell to approve the affirmative action. Now that Rehnquist rather than Burger was chief, he voted honestly with the minority and therefore forfeited his power to assign the opinion. Brennan, the liberal senior justice in the majority, assigned it to himself.
O’Connor and Powell each mattered to Brennan. He very much wanted a robust six-vote majority in this hotly contested area and to avoid a raft of hair-splitting opinions again. Worst case, the two were often enough in agreement that if one split off, the other might endanger Brennan’s majority.
Once Brennan circulated his draft opinion, it became clear that of the two, O’Connor was going to be his main concern. She wanted to allow employers to adopt affirmative action only as a remedy for past behavior so bad it amounted to a violation of the Civil Rights Act. In this case, she asked herself, before the Transportation Authority adopted affirmative action, could a woman have sued it on the grounds that only sex discrimination could account for the total absence of a single female among the 238 skilled workers? Indeed she could have, the justice thought, perhaps remembering the all-male law firms that had rejected her so robustly in the years before there was a Civil Rights Act on the books at all.
Brennan really did not want to require employers to confess to prior civil rights violations in order to defend a voluntary affirmative action program. What company would ever admit that? Brennan gave Powell the trivial changes he was demanding in the opinion and cut O’Connor loose. The majority simply required that the employer be trying to rectify a “manifest imbalance” in the workplace. O’Connor filed a separate opinion setting up her demanding standard for defending affirmative action: “the employer must have had a firm basis for believing that remedial action was required. An employer would have such a firm basis if it can point to a statistical disparity sufficient to support a prima facie claim under Title VII by the employee beneficiaries of the affirmative action plan of a pattern or practice claim of discrimination.”
With Powell providing Brennan with his fifth vote, O’Connor’s opinion in Johnson was technically a mere warning. Soon after the decision in Johnson, however, Powell left the Court. As most of the liberals left the Court in the ensuing years, the standard for affirmative action got harder and harder to meet, and O’Connor had a piece of tightening the noose. Although she provided the crucial fifth vote to keep affirmative action alive in her last years on the Court, she then retired.
She was not a robust voice for social change. The best outcome for women would have been if the Court had made decisions that incentivized private actors to help change the world, rather than women constantly having to sue them to enforce the equality norms the Court set out. Her concurring opinion on affirmative action, like her opinion on liability in the sexual harassment cases, excused employers from responsibility for making social change. Being forbidden to remedy the historically sex-segregated workplace with affirmative action unless the segregation was something illegal they had actively done, most employers would shun any affirmative efforts to bring women in lest they have to admit they had previously been violating the Civil Rights Act. Without strict liability for sexual harassment, employers would be little motivated to establish programs to train their workforce not to act out on the job.
In the sexual harassment arena, the Court eventually moved beyond O’Connor’s tightfisted opinions, making it easier for women to tag the employer with liability for sexual harassment. But until that time, years later, women would have to keep fighting for every inch of progress, case by case, and with their bosses as their adversaries, in the trench warfare of social-change litigation.
As long as O’Connor held the swing, however, the justices never prohibited affirmative action outright. Even if the legal doctrine was incoherent, thousands if not millions of women and racial minorities got jobs and educations, which would never have happened if the Court had struck down affirmative action as reverse discrimination per se.
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Queen Sandra’s Court
LIFE IS GOOD
On June 26, 1987, Lewis Powell retired. President Reagan replaced him with the California federal appeals court judge Anthony Kennedy, who looked to be a lot more conservative than Powell was. The change altered the composition of the Court and O’Connor’s role within it. Often, as in the recent affirmative action case, she and Powell and White made up the pool of potential votes for the liberal side. After Powell left, with Brennan, Marshall, Blackmun, and Stevens on her left and Rehnquist, Scalia, Kennedy, and White mostly to the right, a lot more of the courting from both sides focused on her alone.
She had by then established a very functional routine for running her little law firm of one justice and four clerks. As the cases came into the Court, she assigned one of the clerks to write a preliminary memo, called a “bench” memo, on how she should decide. But instead of handling each case with only the assigned helper, she had all the preliminary memos circulated to all the clerks. The Saturday before oral argument weeks, all the clerks would gathe
r in chambers and talk about all the cases that were to be argued that week. Justice O’Connor brought one of her southwestern specialties for lunch, and they had a freewheeling discussion.
One of her clerks, the son of a working mother, thought the lunch business was weird. His mother rarely cooked. Why was the most important woman in the world making them lunch? Others responded with gratitude for her “maternal” acts of kindness. Writing a tribute after she retired, her 1985–86 clerk John Setear said they had by far the nicest, friendliest workplace in the entire Supreme Court, a veritable matriarchy of courtesy and interest in the clerks’ personal lives. Of course, there were always those who didn’t like Mom’s food. “Ugh, spicy chili,” Setear remembers. “I’m a Midwesterner and I don’t like spicy food.”
Being an O’Connor clerk involved adopting a clutch of her cultural practices. Like many westerners, the O’Connors came to D.C. with a long tradition of amateur entertainment—themed parties, gag costume photographs on Christmas cards. The practice found a home in the hypercompetitive atmosphere of Supreme Court clerking. An innocent episode of a carved pumpkin in chambers one Halloween soon led to a contest for the most elaborate jack-o’-lantern, culminating in one clerk roping in an artist friend to set the curve. In 1986, the clerks put on a gag skit parodying the entire Wizard of Oz. The next year, they hijacked a copy of the video the Court showed to tourists and remade it for the reunion, replacing the serious presentation of the arrival of the mass of petitions for review with a version of the last scene from Raiders of the Lost Ark. Her female clerks soon learned that the early morning aerobics class was a command performance.
O’Connor had a well-established reputation for hiring clerks of diverse political views. When she was interviewing the liberal Joan Greco, her third clerk to come up from then–Judge Ginsburg’s chambers in the D.C. Circuit, she asked Greco how she liked clerking for Ginsburg. “Oh, I love it,” Greco gushed, lured into inattention by O’Connor’s legendary skill at putting people at ease. “It’s so great to work for someone whose opinions you always totally agree with.” In the ensuing silence, Greco came to her senses. “Oh no,” she reflected. “What have I just said?” “Well,” Justice O’Connor responded, “how would you feel about working for someone whose positions you don’t agree with?” “Why,” Greco gushed, “that would be great, too.” And O’Connor offered her the coveted job on the spot.
Sisters in Law Page 20
