Risking Relationships: Understanding the Litigation Choices of Sexually Harassed Women

By Morgan, Phoebe A. | Law & Society Review, January 1, 1999 | Go to article overview

Risking Relationships: Understanding the Litigation Choices of Sexually Harassed Women


Morgan, Phoebe A., Law & Society Review


Resource mobilization and gender socialization theories go a long way toward explaining why so many sexually harassed women opt not to report their problems, but they shed little light on why some still choose to take action and sue. This article examines how relationality can affect a sexually harassed woman's decision to sue. An analysis of 31 litigation narratives shows that regardless of the severity of the harassment, or the amount of legal aid available, maternal responsibilities, marital commitments and parental approval can become pivotal considerations. Some considered the integrity of familial ties to be priceless assets worth suing for. Others deemed them too valuable to risk losing in a contest over rights. These narratives confirm feminist assertions that relationships-especially familial ones-often play a central role in the choices that women make. They also challenge popular assumptions about what constitutes a "personal choice" and under what circumstances women are likely to chose to litigate.

For most people litigation is a high-risk endeavor. Regardless of the principles at stake, or the amount invested, winning is never guaranteed and losing is always an option (Cornell 1990). Although the rewards can be exceptional for those who win, losing can be demoralizing and financially devastating. What compels ordinary people to assume the risks of litigation and file suit?

Certainly the need for monetary reimbursement for the loss of profits, employment, and even health propel many to sue. Noting increases in the number of such claims, tort reformists have argued that the promise of substantial pecuniary gain encourages the use of civil litigation for personal profit (see, for example, Huber 1988 and also Lieberman 1981). But in addition to financial recoupment and profit, litigation studies have shown that plaintiffs are as often motivated by more intrinsic desires, such as the assertion of self-worth (Bumiller 1988), the expression of personal dignity (McCann 1994), the acknowledgment of cherished principles (Conley & O'Barr 1990), atonement for the loss of a life deemed dear (May & Stengel 1990), and even for revenge (Sloan & Hsieh 1995).

Until recently, men have dominated the civil litigation arena. But, as women's legal status has increased and the social situation of many women has improved, their opportunities for civil litigation have expanded (Hoyman & Stallworth 1986). The introduction of the Violence against Women Act and the broadening of civil rights claims that can be made under Titles VII and IX, have substantially increased the number and type of legal remedies for which women can now file suit. In addition, government agencies like the Equal Employment Opportunity Commission (EEOC) and the Office of Civil Rights (OCR) now offer women the opportunity to litigate their gender discrimination claims with a minimum amount of financial risk.

Perhaps one of the more provocative litigation opportunities extended to women has been the reconceptualization of sexual harassment as a form of civil rights violation (MacKinnon 1979 & 1987). The availability of substantial remedies along with the possibility of punitive awards under Titles VII and IX promises not only to transform the policies and practices of those who employ women, but to revolutionize women's litigation patterns as well (MacKinnon 1993). From 1980 until 1994, for example, the rate of sexual harassment claims filed with the EEOC steadily increased by about 12% per year (Bureau of National Affairs 1994) . Since 1980, the Supreme Court has ruled on at least seven sexual harassment claims, and the media is now replete with stories of women who have "hit the jackpot" and earned millions through sexual harassment litigation.

Critics worry that increasing the number and type of legal remedies that women can sue for and expanding their access to government litigation aid has done more to raise the number of frivolous litigations than to elevate the legal or social status of women (Lieberman 1981). …

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