PART FOUR THE ORGANIZATION AND THE PEOPLE IN IT
“But is it a small price to pay for severely damaging our
profit picture?” one of the members asked. Then he added, “I
needn’t remind you that our profit outlook directly affects
what we can offer our current employees in terms of salary
and fringe benefits. It directly affects our ability to revise our
salary schedule.” Finally, he asked Phyllis whether she’d
accept the board’s reducing everyone’s current compensation to meet what Phyllis termed the board’s “obligation to
Despite its decided opposition to Phyllis’s proposal, the
board agreed to consider it and render a decision at its next
meeting. As a final broadside, Phyllis hinted that, if the board
didn’t comply with the committee’s request, the committee
was prepared to pursue legal action.
1. If you were a board member, how would you vote?
2. What moral principles are involved in this case?
3. Do you think Phyllis Warren was unfair in taking advantage
of the board’s implied admission of salary discrimination
on the basis of sex? Why or why not?
4. Do you think Phyllis was wrong in giving the board the
impression that her proposal enjoyed broad support?
Why or why not?
5. If the board rejects the committee’s request, do you
think the committee ought to sue? Give reasons.
C a se 11.4
Consenting to Sexual Harassment
In the case of Vinson v. Taylor, heard
before the federal district court for the District of Columbia,
Mechelle Vinson alleged that Sidney Taylor, her supervisor at
Capital City Federal Savings and Loan, had sexually harassed
her.71 But the facts of the case were contested.
In court Vinson testified that about a year after she began
working at the bank, Taylor asked her to have sexual relations with him. She claimed that Taylor said she “owed” him
because he had obtained the job for her. Although she
turned down Taylor at first, she eventually became involved
with him. She and Taylor engaged in sexual relations, she
said, both during and after business hours, in the remaining
three years she worked at the bank. The encounters included
intercourse in a bank vault and in a storage area in the bank
basement. Vinson also testified that Taylor often actually
“assaulted or raped” her. She contended that she was forced
to submit to Taylor or jeopardize her employment.
Taylor, for his part, denied the allegations. He testified that
he had never had sex with Vinson. On the contrary, he alleged
that Vinson had made advances toward him and that he had
conditioned on giving in to sexual demands and those cases
in which the victim must tolerate a “substantially discriminatory work environment.” The lower court had failed to
consider whether Vinson’s case involved harassment of
the second kind.
Second, the higher court also overruled the district
court’s finding that because Vinson voluntarily engaged in
a sexual relationship with Taylor, she was not a victim of
sexual harassment. Voluntariness on Vinson’s part had
“no bearing,” the judge wrote, on “whether Taylor made
Vinson’s toleration of sexual harassment a condition of
her employment.” Third, the Court of Appeals held that
any discriminatory activity by a supervisor is attributable
to the employer, regardless of whether the employer had
In his dissent to the decision by the Court of Appeals, Judge
Robert Bork rejected the majority’s claim that “voluntariness”
Warner Brothers/courtesy Everett Collection
declined them. He contended that Vinson had brought the
charges against him to “get even” because of a work-related
In its ruling on the case, the court held that if Vinson and
Taylor had engaged in a sexual relationship, that relationship
was voluntary on the part of Vinson and was not employment
related. The court also held that Capital City Federal Savings
and Loan did not have “notice” of the alleged harassment and
was therefore not liable. Although Taylor was Vinson’s supervisor, the court reasoned that notice to him was not notice to
Vinson appealed the case, and the Court of Appeals held
that the district court had erred in three ways. First, the district court had overlooked the fact that there are two possible kinds of sexual harassment. Writing for the majority,
Chief Judge Spottswood Robinson distinguished cases in
which the victim’s continued employment or promotion is
In the movie North Country, Charlize Theron plays a character who has no choice but to take on a miner’s job in order to
survive as the mother of two. Confronted with unrelenting verbal and physical abuse at the hands of her male coworkers, she
fights back and ultimately wins a sexual harassment lawsuit.
PART FOUR THE ORGANIZATION AND THE PEOPLE IN IT
did not automatically rule out harassment. He argued that this
position would have the result of depriving the accused person of any defense, because he could no longer establish that
the supposed victim was really “a willing participant.” Judge
Bork contended further that an employer should not be held
vicariously liable for a supervisor’s acts that it didn’t know
Eventually the case arrived at the U.S. Supreme Court,
which upheld the majority verdict of the Court of Appeals, stating that:
[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
gravamen of any sexual harassment claim is that
the alleged sexual advances were “unwelcome.”. . .
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.
The Court, however, rejected the Court of Appeals’s
p osition that employers are strictly liable for the acts of their
supervisors, regardless of the particular circumstances.72
1. According to her own testimony, Vinson acquiesced to
Taylor’s sexual demands. In this sense her behavior
was “voluntary.” Does the voluntariness of her behavior
mean that she had “consented” to Taylor’s advances?
Does it mean that they were “welcome”? Do you agree
that Vinson’s acquiescence shows there was no sexual
harassment? Which court was right about this? Defend
2. In your opinion, under what circumstances would
acquiescence be a defense to charges of sexual
harassment? When would it not be a defense?
Can you formulate a general rule for deciding such
3. Assuming the truth of Vinson’s version of the
case, do you think her employer, Capital City
Federal Savings and Loan, should be held liable
for sexual harassment it was not aware of? Should
the employer have been aware of it? Does the fact
that Taylor was a supervisor make a difference?
In general, when should an employer be liable for
4. What steps do you think Vinson should have taken when
Taylor first pressed her for sex? Should she be blamed for
having given in to him? Assuming that there was sexual
harassment despite her acquiescence, does her going
along with Taylor make her partly responsible or mitigate
5. In court, Vinson’s allegations were countered by
Taylor’s version of the facts. Will there always be a
“your word against mine” problem in sexual harassment cases? What could Vinson have done to
strengthen her case?
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