The EEOC issued its first set of guidelines defining sexual harassment as a form of discrimination in 1980. They stated that “unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature constitute sexual harassment when … such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.”6 Under EEOC guidelines, employers would be strictly liable for any such acts by supervisory employees and liable for the acts of others if “employers knew or should have known of the harassment and failed to take immediate and appropriate corrective action.”7 Responses to the guidelines came from all sides. Employers argued that they should not be responsible for personal problems that developed between male and female employees. Some feminists applauded the EEOC’s efforts and promoted the view that sexual harassment was a violation of women’s civil rights as it impaired their participation in the workforce. Other feminists were skeptical of any government involvement in defining the problem, fearing that such an approach would be legalistic, bureaucratic, and individualized and would not lead to a needed social transformation. Some believed that any progress on the issue needed to be controlled by women and not enmeshed in the political process.8 Indeed, political changes—the election of Ronald Reagan in 1980 and the advent of a more conservative administration—did lead to regression in policies related to civil rights in general and sexual harassment in particular. Reagan cut the budget of the EEOC and appointed Clarence Thomas as its director. Republican-appointed conservative judges overruled EEOC guidelines in the area of employee liability, refusing to punish “innocent” employers for their employees’ behavior. Accused men attempted to file lawsuits for defamation. Although these lawsuits generally failed, most likely they discouraged women ←19 | 20→from making complaints.9 In conservative publications, articles made the same arguments about sexual harassment that had often been made about rape. It was an individual problem motivated by sexual desire (not a social issue) motivated by power; women were often responsible because of the way they dressed or spoke; many women made false charges especially if romances went wrong; poor innocent men were confused about what was permissible behavior.10 Against this background where momentum to protect women from sexual harassment seemed to be waning, it was fortunate that Judge Spotswood Robinson of the Federal Court of Appeals for the District of Columbia presided over the court that would hear several of the landmark cases establishing sexual harassment as a form of discrimination on the basis of sex.
Judge Robinson spent most of his career working in the area of civil rights law. Before being appointed to the federal bench, he had been a member of the national Commission on Civil Rights, an attorney for the NAACP in the era of Brown v. Board of Education, and served as Dean of Howard Law School, known for graduating scores of civil rights attorneys. He had no difficulty in seeing the similarities between racial harassment and sexual harassment. He was especially sensitive to the experience of African American women and the “damaging influence of racialized sexual stereotypes.”11 Thus when in 1977 Judge Robinson wrote the opinion in Paulette Barnes’s case before the D.C. Court of Appeals, he rejected the lower courts conclusion that Barnes was demoted “not because she was a woman but because she refused to engage in sex with her supervisor.” He stated that “We cannot accept this analysis … But for her womanhood, from aught that appears, her participation in sexual activity would never have been solicited.”12 In other words, Robinson refused to parse the situation to separate Barnes’s sex—woman—from her gender—a target of her boss’s sexual advances. He went on to state, “To say, then that she was victimized in her employment simply because she declined the invitation is to ignore the asserted fact that she was invited only because she was a woman subordinate to the inviter in the hierarchy of agency personnel …. Thus gender cannot be eliminated from the formulation … and that formulation advances a prima facie case of sex discrimination within the purview of Title VII.”13 Here one can find Robinson’s sensitivity to discrimination in the workplace as it contributes to and perpetuates inequality. If the point of Title VII is to reduce and eliminate discrimination based on sex, and if harassment both evidences and enhances that discrimination, then sexual harassment must be prohibited by Title VII. Judge Robinson’s understanding of Barnes’s case as well as his subsequent rulings changed the focus from the victim (what ←20 | 21→did she do to attract sexual attention?) to the harasser (what did he do to negatively affect her work environment?). The shift in focus would be critical in future understanding of sexual harassment, yet courts would not apply it consistently.
Robinson participated in a three-judge panel that issued another significant opinion in 1980 in the case of Sandra Bundy, an employee of District of Columbia Department of Corrections. Bundy had been subjected to what the lower court called “improper sexual advances” that were “standard operating procedure, a fact of life, a normal condition of employment” at the agency where she worked. Having admitted this situation, the district court then found that Bundy did not have a claim of discrimination based on sex because, even though she had experienced ongoing harassment, she had not lost her job.14 The district court perceived the treatment of female employees at the Department of Correction to be merely a game the “boys” played on the job. The game was permissible if women were only mistreated, as long as they were not fired.
Robinson’s colleague on the Court of Appeals, Judge J. Skelly Wright was also a veteran of civil rights litigation and a jurist who understood the emerging issue of sexual harassment. In Bundy’s case, he rejected the notion that offensive behavior toward female employees was just a game and that a victim had to experience a tangible loss in order for the conduct to be considered discrimination that affected the “terms, conditions, or privileges of employment” mentioned in Title VII. There did not need to be a quid pro quo arrangement for sexual harassment to occur. In other words, the Bundy case involved the question of whether sexual harassment that created a hostile environment met the test for discrimination based on sex. Judge Wright’s opinion answered that question in the affirmative. The D.C. Court of Appeals saw a comparison with cases where harassment based on race created a hostile work environment. They cited “environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers,”15 and drew an analogy with sexual harassment. Conditions of employment, the court stated, included the environment. Sexual harassment “injects the most demeaning sexual stereotypes into the general work environment.” Such behavior was an “intentional assault on an individual’s innermost privacy.”16 They also referenced the EEOC guidelines which referred to a type of sexual harassment that created “an intimidating, hostile, or offensive work environment.”17 In addition, the opinion quoted directly (without quotation marks) from Catharine MacKinnon’s book, Sexual Harassment of ←21 | 22→Working Women. In her words,