Senators’ concerns: As Deputy Solicitor General, Kuhl co-authored an amicus curiae brief for the United States and the EEOC in the Supreme Court supporting the employer in the landmark sexual harassment case of Meritor Savings Bank v. Vinson. The plaintiff, Mechelle Vinson, a bank employee, alleged that her supervisor had forced her to submit to unwelcome sexual advances over a number of years, during which time she was afraid that she would lose her job if she refused. The position that Kuhl took, had it been adopted by the Court, would have made it more difficult for women to prove sexual harassment in the workplace. Specifically, as Senator Feinstein observed, Kuhl’s brief “took the side of the employer” and “argued in support of the District Court’s ruling that what occurred was simply a voluntary personal relationship between coworkers and that that would not be actionable under Title VII of the Civil Rights Act.” As Senator Feinstein further observed, Kuhl’s brief “ignored the power held by a supervisor over [a] subordinate in these circumstances . . . .” Kuhl Hearing, at 51. Senator Feinstein asked Kuhl if she had been involved in the decision to file a government brief taking the side of the employer in this case. Id. at 51-2.
Kuhl’s testimony: While Kuhl acknowledged that she had been involved in that decision, she then immediately tried to deflect Senator Feinstein’s concerns about the position she had taken in favor of the employer. According to Kuhl, “the Supreme Court’s decision in Meritor closely tracked the brief that we filed. The reasoning is nearly identical to what we were urging on the Court.” Id. at 52. Kuhl further testified that “[t]he only reason” the Department had urged a “reversal” of the ruling below in favor of Ms. Vinson had to do with what she called “the very technical interpretation of the Court’s findings of fact,” namely, that the trial court had found any sexual relationship between Ms. Vinson and her supervisor to be “voluntary.” Id. According to Kuhl, this was “a technical issue on which the Supreme Court and we disagreed” and that the Justice Department was “happy with the decision” in this case. Id.
The facts: Kuhl’s testimony was astonishing in light of the fact that her amicus brief had urged the Court to overturn the Court of Appeals’ decision and to rule against Ms. Vinson, while the Court, in an opinion by then-Justice Rehnquist, unanimously ruled in favor of Ms. Vinson. In addition, what Kuhl called a “technical” disagreement — defining “voluntary” or “consensual” conduct to preclude any finding that the conduct was “unwelcome” — in fact went to the very crux of what an employee needs to prove in order to establish a claim for sexual harassment based on a hostile work environment, and formed the basis upon which the Court ruled in favor of Ms. Vinson. Rehnquist’s opinion flatly rejected Kuhl’s position, holding that “the 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.”6 Kuhl’s assertion that the Court’s ruling tracked the government’s brief and the implication in her testimony that it was a victory for the government appears to be confirmation spin by Kuhl intended to deflect the fact that her brief had unsuccessfully urged a far tougher standard for proving sexual harassment generally, as well as a ruling for the employer in this specific case.
Senator Feinstein, appropriately “puzzled” by Kuhl’s testimony concerning this case,7 asked Kuhl in post-hearing questions for a further explanation, as did Senator Biden. In her replies, Kuhl continued to maintain that the Court’s unanimous ruling for Ms. Vinson was in line with Kuhl’s brief in support of the employer. According to Kuhl, her brief “argued for a standard based on whether sexual advances made in the workplace were ‘unwelcome.’ . . . The Supreme Court accepted the United States’ argument that the appropriate standard was whether the advances were unwelcome.”8 What Kuhl does not state, however, is that her brief defined “unwelcome” sexual advances in such a manner that non-forcible sexual conduct — “voluntary” or “consensual” in the words of Kuhl’s brief — would not be considered “unwelcome.”9 The Supreme Court, as discussed above, unanimously rejected such a narrow definition of “unwelcome,” holding that a woman need not have been “forced to participate [in sexual activity] against her will” in order to establish sexual harassment.