23 demonstrate beyond question that he would allow governmental regulation of the most intimate aspects of sexual and family lives without recourse to the basic constitutional freedoms recognized by the Supreme Court for many decades. II. JUDGE BORK'S RECORD IS ONE OF LIMITING Judge Bork's judicial interpretations of statutes protecting women's legal rights have much in common with his constitutional analysis. Here, too, the consequences of his written decisions are to limit women's legal rights. While he is an outspoken advocate of the theory of "judicial restraint" in the interpretation and application of statutes as well as the Constitution, emphasizing the limited role of the courts compared to Congress and the primacy of political choices in virtually all instances,'' in practice he is by no means as consistently restrained and deferential as he argues judges should be. contrary, his record strongly suggests that he is "resultoriented," i.e., his awareness of the results of his decisions has shaped his approach to particular cases. To the 12 See, e.g., Dronenburg v. Zech, supra, 741 F.2d at 1397; Oil, Chemical & Atomic Workers Int'l Union v. American Cyanamid Co., 741 F.2d 444, 445 (D.C. Cir. 1984) (majority op.); Planned Parenthood Fed'n of America v. Heckler, 712 F.2d 650, 665 (D.C. Cir. 1983) (op. concurring in part and dissenting in part); Bork, 24 Our review of Judge Bork's published opinions shows that he has interpreted women's statutory rights narrowly, in ways that adversely affect women's interests in the workplace and elsewhere. Judge Bork has not written many opinions on women's issues. In the cases in which he has, however, the stark fact is that the court would have ruled adversely to women in every one if his views had prevailed. A. Women in the Workplace Title VII of the Civil Rights Act of 1964, prohibiting sexbased discrimination in virtually all aspects of employment, 11 is the most important federal law assuring women equitable treatment in seeking and holding jobs. Although Judge Bork does not question that Title VII protects women, as he cannot because the statute explicitly names "sex" as an illegal basis for employment decisions, his record reveals that he nonetheless has interpreted Title VII adversely to women's interests in critical areas.'' 13 Title VII also prohibits employment discrimination based on race, color, religion, and national origin as well as discrimination based on sex. 14 While our discussion is based on those cases in which Judge Bork has written an opinion, we are aware of three employment discrimination cases in which he was a member of the panel but did not write an opinion. The panels in these three cases ruled unanimously, favorably to women In contrast to the cases in which Judge Bork has written, these cases involved the application of settled principles under Title VII and the Equal Pay Act. Thus, in Palmer v. Shultz, 815 F.2d 84 (D.C. Cir. 1987), the court applied Title VII principles established under Supreme Court and D.C. Circuit precedent to reverse a district court decision dismissing a sex discrimination suit against the Foreign Service and to remand the case for further factfinding Sexual Harassment. 25 Judge Bork has spoken clearly on the question of sexual harassment on the job. If his views prevailed, Title VII would not afford women meaningful protection from such harassment; sexual harassment is not, he suggests, sexbased discrimination that is prohibited by Title VII with the same force and to the same extent as other types of employment discrimination. This position is evident from his dissenting opinion (from the denial of rehearing en banc) in Vinson v. Taylor, 753 F.2d 141, rehearing denied, 760 F.2d 1330 (D.C. Cir. 1985), aff'd sub nom. Meritor Savings Bank v. Vinson, 106 s.ct. 2399 (1986), and his "separate statement" (accompanying the denial of rehearing en banc) in King v. Palmer, 778 F.2d 878, 883 (D.C. Cir. 1985). Judge Bork's Vinson dissent is of particular interest and concern. Because Vinson was the landmark case in which a unanimous Supreme Court subsequently held that jobrelated sexual harassment is prohibited by Title VII, Judge Bork's opinion demonstrates plainly how extreme his views are in this area. Judge Bork's Vinson dissent questioned whether sexual harassment should be prohibited discrimination at all. He and proceedings. In Laffey v. Northwest Airlines, Inc., 740 F.2d 1071 (D.C. Cir. 1984), cert. denied, 469 U.S. 1181 (1985) (per curiam), the court in large part relied on specific rulings made in two previous appeals in the same case to reject much of the airline's appeal and, again, applied clear Supreme Court precedent in determining the back pay award, see id. at 1101-02. Finally, in Ososky v. Wick, 704 F.2d 1264 (D.C. Cir. 1983), the court applied settled law under the Fair Labor Standards Act and plain statutory language to hold the Foreign Service covered by asserted: 26 "Perhaps some of the doctrinal difficulty in this area is due to the awkwardness of classifying sexual advances as 'discrimination.' Harassment is reprehensible, but Title VII was passed to outlaw discriminatory behavior and not simply behavior of which we strongly disapprove." 760 F.2d at 1333 n.7. This extraordinarily narrow reading of Title VII was flatly rejected by the Supreme Court. Now Chief Justice Rehnquist wrote for the Court that "[w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex." Vinson, 106 S.Ct. at 2404 (emphasis added). In addition to raising the basic question whether jobrelated sexual harassment violates Title VII, Judge Bork's Vinson dissent argued for more stringent standards of proof of harassment than those announced by the panel opinion or, subsequently, by the Supreme Court. The Vinson case involved sexual harassment that violated Title VII because it created a hostile work environment for the victim.'' One issue in the case was whether a woman's "voluntary" participation in such an unwelcome sexual relationship, out of fear for her job and job benefits, prevents her from obtaining a legal remedy. The court of appeals ruled that if harassment was unlawfully made a condition of her employment, she could obtain a remedy whether or not she succumbed. 753 F.2d at 145-46. 16 Vinson, supra, 753 F.2d at 145, aff'd, 106 S.Ct. at 240406. In this regard, the Court of Appeals relied on its earlier ruling in Bundy v. Jackson, 641 F.2d 934, 943-46 (D.C. Cir. 1981). complete defense to a claim of sexual harassment. See 760 F.2d at 1330-31. Under this approach, the only employee who would be protected against sexual harassment is one who can afford to jeopardize her job, promotion, or other benefits by refusing to capitulate. Yet Judge Bork complained that if the victim's capitulation is not a defense, the kinds of proof allowed in harassment cases "are rigged so that dalliance is automatically harassment * * *." Id. at 1330.'' Judge Bork's position on this point, like his view of sexual harassment itself, was unanimously rejected by the Supreme Court. The Court stated in no uncertain terms that the dispositive issue is whether the supervisor's sexual advances are unwelcome and not whether the employee's participation in "sex-related conduct" is "'voluntary'." 106 S.Ct. at 2406. 16 - The casual language that Bork uses to describe the unwelcome, heterosexual harassment at issue in Vinson e.g. "dalliance" and "sexual escapade" (760 F.2d at 1332) contrasts sharply with his description of the consequences of consensual homosexual relationships in Dronenburg v. Zech, supra: "Episodes of this sort are certain to be deleterious to morale and discipline, to call into question the even-handedness of superiors' dealings with lower ranks, to make personal dealings uncomfortable where the relationship is sexually ambiguous, to generate dislike and disapproval among many who find homosexuality morally offensive, and, it must be said, given the powers of military superiors over their inferiors, to enhance the possibility of homosexual |