Posner Exits Seventh Circuit; Workplace Law Legacy Remains

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By Jon Steingart

When Mary Carr joined General Motors’ tinsmith shop in 1984, her co-workers weren’t happy about having a female colleague. They subjected her to a daily barrage of profanity-laced ridicule and drew female sex organs on her work tools.

A judge dismissed Carr’s sexual harassment lawsuit because she allegedly dished it out like she took it. Even if Carr’s co-workers harassed her, her participation in “shop talk” meant it wasn’t unwelcome, according to the court. A demure tinsmith might have eluded harassment, but Carr provoked it with her unladylike conduct, the judge said.

Judge Richard Posner took issue with the lower court’s reasoning once the case reached his court on appeal. “‘Welcome sexual harassment’ is an oxymoron,” he wrote for the U.S. Court of Appeals for the Seventh Circuit. “Of course it was unwelcome,” he said.

“Even if we ignore the question why ‘unladylike’ behavior should provoke not a vulgar response but a hostile, harassing response,” Posner wrote, “and even if Carr’s testimony that she talked and acted as she did in an effort to be ‘one of the boys’ is (despite its plausibility) discounted, her words and conduct cannot be compared to those of the men and used to justify their conduct and exonerate their employer.”

That’s the sort of blunt talk for which Posner is known. The 78 year old jurist announced Sept. 1 that he would retire the next day. President Ronald Reagan appointed him to the Seventh Circuit in 1981. He served as its chief judge from 1993 to 2000.

“I think he felt that the way most judges wrote opinions tended to be too formalistic and not really engaging with the ideas and the facts of the particular case in the way he thought were appropriate,” Carolyn Shapiro, a professor at Chicago-Kent College of Law who clerked for Posner, told Bloomberg BNA Sept. 5. “ Carr was a sexual harassment case in which he kind of understood sexual harassment as being about trying to keep women out of the workplace as opposed to being about sex.”

In Posner’s view, discrimination is about more than a particular interaction, or even a series of interactions, Shapiro said. “The way people interact—it’s a lot more complicated,” she said. It’s going to be tied up in unconscious biases and social contexts.”

Carr was a groundbreaking decision because Judge Posner’s opinion was the first to honestly recognize that sexual harassment is often about much more than just blunt sexual advances, but it is also about gross power imbalances in the workplace that harm women,” Anthony Kreis, an employment discrimination law professor at Chicago-Kent, told Bloomberg BNA Sept. 5.

Posner, in a statement, called his court tenure a “tremendous honor.” He also noted that he had authored more than 3,300 opinions during his time on the bench.

‘An Example of Judicial Candor’

Posner this year joined a Seventh Circuit majority in ruling that a federal discrimination law prohibits discrimination based on sexual orientation. The April 4 ruling is the first, and still the only, time a federal appeals court reached this conclusion.

“Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted,” Posner wrote in a concurring opinion. “A statute when passed has an understood meaning; it takes years, often many years, for a shift in the political and cultural environment to change the understanding of the statute.”

He called his reasoning “an alternative approach that may be more straightforward” than the explanation by which the court concluded that Title VII prohibits sexual orientation discrimination.

“What Judge Posner did in that case is to try to lay bare his view as to why it makes sense to read the language in the statute in light of present considerations, not past considerations,” Robert Hochman, a partner in Sidley Austin LLP’s Chicago office who also clerked for Posner, told Bloomberg BNA Sept. 5. “I think it’s an extraordinary opinion as an example of judicial candor.”

“I think that’s sort of a classic piece of work by him in terms of his approach to statutory interpretation,” Hochman said.

Posner, who didn’t respond to a request for comment Sept. 5, said he will continue to teach and publish, with a “particular focus on social justice reform.”

“I am proud to have promoted a pragmatic approach to judging during my time on the court, and to have had the opportunity to apply my view that judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case,” he said.

—John Crawley contributed to this story

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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