Kuhl gave seriously misleading testimony about an important sexual harassment case, Meritor Savings Bank v. Vinison, in which the Supreme Court unanimously rejected the position taken by Kuhl and the Justice Department, a position that would have made it much harder for women to challenge sexual harassment in the workplace.
Kuhl testified that the Supreme Court’s disagreement with the position she took as Deputy Solicitor General was a “technical issue” and that the Justice Department was “happy with the decision.” Kuhl’s claims are astonishing, because her brief had urged the Supreme Court to overturn an appeals court decision and rule against a woman who claimed her supervisor had forced her to submit to unwelcome sexual advances over a number of years, during which the woman feared she would lose her job if she refused. Kuhl’s brief argued that because the district court had found that any sexual relationship between Ms. Vinison and her supervisor was “voluntary,” there could be no sexual harassment. The Supreme Court unanimously ruled in favor of Ms. Vinison, holding that “voluntary” – in the sense of unforced – conduct may still be unwelcome and therefore unlawful.
What Kuhl dismissed as a “technical” disagreement in fact went to the very essence of what a woman would need to prove. In post-hearing answers to questions by Sens. Dianne Feinstein and Joseph Biden, Kuhl continued to maintain that the Supreme Court accepted her brief’s position that the standard should be based on whether sexual advances were unwelcome. But Kuhl neglected to acknowledge that her brief would have made it virtually impossible for a woman who had not been physically forced into sex against her will to make a claim that the conduct was “unwelcome.” This was no mere technicality; the Court’s ruling rejected Kuhl’s effort to dramatically limit women’s ability to challenge sexual harassment in the workplace.