By Alexa Richardson
Although acts of sexual assault and harassment are rooted in power, the law has failed to adequately address the issue of power imbalance.[1] Prior to major shifts in the legal conception of sexual misconduct in the seventies and eighties, such acts were also considered too “private” for state interference.[2] Not only has the recent #MeToo wave of survivors speaking out thrust formerly private acts into the public spotlight, but it has highlighted how sexual misconduct is systemic in nature and causes collective, not just individual, harm.[3] Because sexual misconduct is rooted in institutional power structures, solutions to ending it require strategies that emphasize structural, systemic changes and collective justice.[4] Class action lawsuits for sexual misconduct, often targeting institutional actors, continue to offer the potential for systemic change and collective redress for the harms caused.
Notable recent class action cases include a $70 million case against Dartmouth for widespread sexual misconduct against women graduate students in the psychology department; a $200 million class action alleging gender-based pay disparities, sexual harassment, and a “fraternity” culture at big-law firm Jones Day; two national class action suits against the Catholic Church by sex-abuse victims; and a pending $215 million settlement against University of Southern California (USC) for sexual abuse of students by a campus gynecologist. Though class actions for sexual assault and harassment are not a new phenomenon,[5] the rise in class investigations and lawsuits filed for sexual harassment reported by the Equal Employment Opportunity Commission, along with practitioner reports of a “deluge” of sexual misconduct class actions, indicate a likely increase in collective actions for sexual misconduct since the advent of the #MeToo movement inspired many survivors to come forward.
In addition, derivative shareholder class actions and securities class actions related to sexual misconduct are on the rise. In derivative class actions, shareholders sue officers and directors on behalf of corporations for breach of fiduciary duty and waste of corporate assets based on allegations that board members or executives knew of and failed to act on sexual misconduct claims. In the wake of two sexual harassment scandals in 2017, 21st Century Fox reached a derivative class action settlement with shareholders for $90 million. In the year following, large suits were filed by shareholders of 15 to 20 other publicly traded companies related to sexual harassment mismanagement. Targets include Nike, whom shareholders have accused of “fostering a ‘boys’ club culture’ that ‘resulted in the bullying, sexual harassment, and gender discrimination of [Nike]’s female employees’ while impairing the company’s ‘reputation and goodwill,’”[6] and Google, whose board is accused by shareholders of “knowingly participat[ing] in or acquiesce[ing] to conduct” by senior executives that “cost the company hundreds of millions in generous exit packages to wrongdoers and exposed it to further litigation and a loss of federal contracts over its hostile and discriminatory workplace.” Securities class actions involve shareholders suing after stock falls following a sexual harassment scandal in which the company made public statements denying wrongdoing and claiming adherence to ethical standards and policies, while board members or executives knew of misconduct that contradicted these policies. In a recent example, shareholders brought a class action against CBS Corporation for covering up sexual misconduct by CEO Leslie Moonves.[7] These cases have the potential to raise the stakes for corporations fostering sexual misconduct and to encourage better prevention and management of misconduct claims, but also distribute compensation to those other than the victims and raise concerning questions about framing accountability for sexual misconduct in terms of maximizing shareholder welfare.[8]
Seeking collective redress for gender-based harms in the form of class actions is in line with feminist visions of justice and can effectively challenge and reform powerful institutions.[9] Turning from individual to collective methods of adjudication allows for the systemic nature these harms to be captured and addressed. In the case of sexual assault or harassment claims, the “aggregation of claims results in believability” and “demonstrate[s] the institutional dimensionof discrimination.”[10] Strength in numbers shifts the power dynamic between survivors and the institutions that perpetrated harm. Individual claims may be cost-prohibitive on their own, and victims may fear retaliation for bringing an individual claim.[11] Filing as a class also incentives lawyers to represent victims when there would otherwise be financial barriers to doing so, and, unlike in an individual suit, can allow for injunctive or declaratory relief that tangibly changes corporate practices.[12]
Despite these benefits, there are some important drawbacks to the use of class actions for sexual misconduct cases. Unlike in individual lawsuits, class members have little control over the process, and lose the opportunity to personally call their abuser to account. Lawyer Tornkin Manes writes that, “[f]or sexual abuse survivors, legal cases are usually about more than just money. They are about coming forward, being heard and acknowledged and holding people to account, as well as gaining a sense of justice and closure. In a class action these goals can get lost.” Furthermore, Manes notes, damages in class actions are usually less than they would be in individual suits, thereby denying survivors full compensation for the harm they have experienced.
The recent case against University of Southern California for failing to act on numerous complaints of sexual misconduct by staff gynecologist Dr. George Tyndall illustrates the tensions between individual and collective justice in class action suits for sexual misconduct. The pending settlement of $215 million would compensate every one of the 15,000 to 17,000 students who saw Tyndall for women’s healthcare between 1989 and 2016 at least $2,500, whether or not they personally experienced misconduct. In recognition of the collective nature of the harm, lawyers on both sides said that “the base compensation was to acknowledge that given the allegations against Tyndall, simply being his patient amounted to damage.” Those that experienced misconduct will receive individually-determined settlements up to $250,000. However, plaintiff’s lawyers representing over 650 individual claimants oppose the class action settlement as too small and premature, and say they will urge their clients to opt-out of the settlement and seek higher individual compensation.
Moreover, several obstacles exist to bringing class actions for collective adjudication of sexual misconduct. The widespread use of mandatory arbitration clauses poses one such barrier for victims,[13] as do similar clauses that expressly prohibit class membership in a class action. Class actions for sexual harassment in the workplace, based on violation of Title VII for sex discrimination, became more difficult cases to bring after the Supreme Court’s 2011 decision in Wal-Mart Stores, Inc. v. Dukesraised the standard for establishing a common question of law or fact, as is necessary to qualify for class certification.[14] While Wal-Mart Stores, Inc. placed a significant constraint on employee class actions, some employees have managed to meet the new threshold, and courts have still allowed cases to move forward where the employer’s practices were shown to have created a hostile working environment for women.[15] The Equal Employment Opportunity Commission, charged with enforcing Title VII, is able to bring actions on behalf of groups of employees for discrimination without having to certify them as a class.[16] Furthermore, Wal-Mart Stores, Inc. did not bar class-action suits for sexual misconduct by non-employee plaintiffs.
Despite the obstacles, the ongoing cultural emphasis on sexual misconduct as both a collective and individual harm has fueled the use of collective legal strategies such as class actions. The #MeToo era has re-emphasized the systemic nature of sexual misconduct, and class actions for sexual misconduct are increasingly being used to target institutions that fail to adequately address it. These actions are particularly suited to challenging powerful actors and institutions that have perpetuated sexual misconduct, and targeting the power imbalances that often underlie sexual misconduct. By focusing on collective justice and institutional accountability, class action lawsuits help promote the structural, systemic change needed to end sexual misconduct.
[1]Susan A. Lentz; Robert H. Chaires, Sexual Assault Statutes Targeting Authority & Power Imbalances: A Step Forward in Rape Law Reform, 3 Freedom Center J. 1, 12 (2011)
[2]Louise Marie Roth, The Right to Privacy Is Political: Power, the Boundary between Public and Private, and Sexual Harassment, 24 Law & Soc. Inquiry 45, 47 (1999)
[3]Catharine MacKinnon, Sexual Harassment of Working Women: A Case Study of Discrimination, xiii (1979)
[4]Vicki Shultz, Reconceptualizing Sexual Harassment, Again, 128 Yale L.J. F. 22, 66 (2018)
[5]Daniel Hemel and Dorothy S. Lund, Sexual Harassment and Corporate Law, 118 Colum. L. Rev. 1583, 1607 (2018).
[9]Lisset M. Pino, Wal-Mart v. Dukes: The Feminist Case against Individualized Adjudication, 30 Yale J.L. & Feminism 401, 402 (2018)
[10]Id.at 404 (emphasis in original).
[11]Hemel, D. and Lund, D. S. (2018) Sexual Harassment and Corporate Law. Columbia Law Review, Vol. 18, No. 6, 1607.
[13]Alexander J.S. Colvin, The Metastisization of Mandatory Arbitration, 94 Chi.-Kent L. Rev. 3, 26 (2019)
[14]Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).
[15]Daniel Hemel and Dorothy S. Lund, Sexual Harassment and Corporate Law, 118 Colum. L. Rev. 1583, 1609 (2018).
[16]Tristin K. Green, The Future of Systemic Disparate Treatment Law, 32 Berkeley J. Emp. & Lab. L. 395, 397 (2011).