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07/27/77 Paulette L. Barnes, v. Douglas M. Costle

July 27, 1977





Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 1828-73).


Bazelon, Chief Judge, and Robinson and MacKinnon, Circuit Judges. Opinion for the Court filed by Circuit Judge Robinson. Concurring Opinion filed by Circuit Judge MacKinnon.


This appeal launches a review of an order of the District Court awarding a summary judgment to appellee *fn1 on the ground that Title VII of the Civil Rights Act of 1964, *fn2 as amended by the Equal Employment Opportunity Act of 1972, *fn3 does not offer redress for appellant's complaint that her job at the Environmental Protection Agency was abolished because she repulsed her male superior's sexual advances. *fn4 We reverse. I

Appellant, a black woman, was hired by the director of the Agency's equal employment opportunity division, who also is black, as his administrative assistant at grade GS-5. During a pre-employment interview, she asserts, he promised a promotion to grade GS-7 within ninety days. Shortly after commencement of the employment, she claims, the director initiated a quest for sexual favors by "(a) repeatedly soliciting [her] to join him for social activities after office hours, notwithstanding [her] repeated refusal to do so; (b) by making repeated remarks to [her] which were sexual in nature; (c) by repeatedly suggesting to [her] that if she cooperated with him in a sexual affair, her employment status would be enhanced." *fn5 Appellant states that she "continually resisted [his] overtures . . . and finally advised him that notwithstanding his stated belief that many executives 'have affairs with their personnel', she preferred that their relationship remain a strictly professional one." *fn6 Thereafter, she charges, the director "alone and in concert with other agents of [appellee], began a conscious campaign to belittle [her], to harass her and to strip her of her job duties, all culminating in the decision of [appellee's] agent . . . to abolish [her] job in retaliation for [her] refusal to grant him sexual favors." *fn7 These activities, appellant declares, "would not have occurred but for [her] sex." *fn8

After seeking unsuccessfully an informal resolution of the matter, appellant, acting pro se, filed a formal complaint alleging that the director sought to remove her from his office when she "refused to have an after hour affair with" him. *fn9 The complaint charged discrimination based on race rather than gender, *fn10 a circumstance which appellant attributes to erroneous advice by agency personnel. *fn11 A hearing on the complaint was conducted by an appeals examiner, who excluded proffered evidence of sex discrimination and found no evidence of race discrimination. *fn12 In its final decision, the Agency concurred in the examiner's finding. *fn13

Appellant then obtained counsel and appealed to the Civil Service Commission. There, appellant's attorney requested the Board of Appeals and Review to reopen the record to enable the presentation of sex-discrimination evidence. *fn14 The Board, however, affirmed the agency's negative finding on race discrimination and refused the request to reopen on the ground that appellant's allegations did not bring the case within the purview of the Commission's regulations implementing Title VII. *fn15

Thereafter, appellant filed her complaint in the District Court, confining her theory, by allegations to which we have averted, *fn16 to sex discrimination violative of Title VII and the Fifth Amendment. *fn17 The court, limiting the inquiry to reexamination of the administrative record, *fn18 granted appellee's motion for summary judgment in the view that "the alleged discriminatory practices are not encompassed by the Act." *fn19 The "alleged retaliatory actions of [appellant's] supervisor taken because [appellant] refused his request for an 'after hour affair,'" the court held, "are not the type of discriminatory conduct contemplated by the 1972 Act." *fn20 The court reasoned:

The substance of [appellant's] complaint is that she was discriminated against, not because she was a woman, but because she refused to engage in a sexual affair with her supervisor. This is a controversy underpinned by the subtleties of an inharmonious personal relationship. Regardless of how inexcusable the conduct of [appellant's] supervisor might have been, it does not evidence an arbitrary barrier to continued employment based on [appellant's] sex. *fn21

The appeal to this court then followed. II

By adoption of Title VII of the Civil Rights Act of 1964, *fn22 Congress made it an unlawful employment practice for non-governmental employers, with exceptions not presently relevant, *fn23 "to . . . discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual's . . . sex . . . ." *fn24 Unfortunately, the early history of that legislation lends no assistance to endeavors to define the scope of this prohibition more precisely, if indeed any elucidation were needed. It was offered as an addition to other proscriptions by opponents in a last-minute attempt to block the bill which became the Act, *fn25 and the bill, with the amendment barring sex-discrimination, then quickly passed. *fn26 Thus, for an eight-year period following its original enactment, there was no legislative history to refine the congressional language.

When, however, the 1964 Act was amended by the Equal Employment Opportunity Act of 1972, *fn27 there was considerable discussion on the topic. Not surprisingly, it then became evident that Congress was deeply concerned about employment discrimination founded on gender, and intended to combat it as vigorously as any other type of forbidden discrimination. The report of the House Committee on Education and Labor declared in ringing tones that the statute - eight years after passage - still had much to accomplish in order to elevate the status of women in employment: *fn28

Numerous studies have shown that women are placed in the less challenging, the less responsible and the less remunerative positions on the basis of their sex alone.

Such blatantly disparate treatment is particularly objectionable in view of the fact that Title VII has specifically prohibited sex discrimination since its enactment in 1964. *fn29

The Committee emphasized that women's employment rights are not "judicial divertissements," *fn30 and that "discrimination against women is no less serious than other forms of prohibited employment practices and is to be accorded the same degree of social concern given to any type of unlawful discrimination." *fn31 The report of the Senate Committee on Labor and Public Welfare reveals a similar commitment to eradication of sex discrimination: *fn32

While some have looked at the entire issue of women's rights as a frivolous divertissement, this Committee believes that discrimination against women is no less serious than other prohibited forms of discrimination, and that it is to be accorded the same degree of concern given to any type of similarly unlawful conduct. As a further point, recent studies have shown that there is a close correlation between discrimination based on sex and racial discrimination, and that both possess similar characteristics. *fn33

Not unexpectedly, then, during the thirteen years since enactment of Title VII it has become firmly established that the Act invalidates all "artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of . . . impermissible classification[s]." *fn34 Title VII has been invoked to strike down a wide variety of impediments to equal employment opportunity between the sexes, including insufficiently validated tests, *fn35 discriminatory seniority systems, *fn36 weight-lifting requirements, *fn37 and height and weight standards solely for those of one gender. *fn38 Congress could hardly have been more explicit in its command that there be no sex-based discrimination "against any individual with respect to his . . . terms, conditions, or privileges of employment . . . ." *fn39

The equal employment measures of the Civil Rights Act of 1964 did not apply to the Federal Government. *fn40 The amendments to Title VII effected by the Equal Employment Opportunity Act of 1972, however, extended the substantive protections of the 1964 Act to federal as well as state and local employees. *fn41 In the federal domain, the 1972 Act provides in relevant part that

all personnel actions affecting employees or applicants for employment . . . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, sex or national origin. *fn42

To be sure, the language of the 1964 Act in reference to private employees differs somewhat from that of the 1972 Act respecting federal employees. But it is beyond cavil that Congress legislated for federal employees essentially the same guarantees against sex discrimination that previously it had afforded private employees. *fn43 We thus proceed to an examination of appellant's claim with the assurance that anything constituting sex discrimination in private employment is equally interdicted in the federal sector. *fn44 III

Title VII now requires, inter alia, that "all personnel actions affecting employees . . . in [federal] executive agencies . . . shall be made free from any discrimination based on . . . sex . . . ." *fn45 It is not argued, nor plausibly could it be, that elimination of appellant's then position within the Environmental Protection Agency was not a "personnel action" within the contemplation of this provision. *fn46 Nor can it be doubted that the action effected a "discrimination" - a difference in treatment - against appellant vis-a-vis other employees of the Agency, since there is no indication that the position of any other employee of the agency was similarly eliminated. The question debated, and the issue pivotal on this appeal, is whether the discrimination, in the circumstances described by appellant, was as a matter of law "based on . . . sex . . . ." *fn47

We start with the statute as written, and, so measured, we think the discrimination as portrayed was plainly based on appellant's gender. Her thesis, in substance, is that her supervisor retaliated by abolishing her job when she resisted his sexual advances. More particularly, she states that he repeatedly told her that indulgence in a sexual affair would enhance her employment status; that he endeavored affirmatively but futilely to consummate his proposition; and that, upon her refusal to accede, he campaigned against her continued employment in his department and succeeded eventually in liquidating her position. *fn48 So it was, by her version, that retention of her job was conditioned upon submission to sexual relations -an exaction which the supervisor would not have sought from any male. *fn49 It is much too late in the day ...

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