Tech signals end of forced arbitration for sexual misconduct claims
The slew of sexual harassment claims that launched the #MeToo movement is changing workplace policy in Silicon Valley one technology giant at a time.
After more than 20,000 Google workers around the globe walked off their jobs in early November to protest lenient treatment of executives accused of sexual misconduct, the internet giant last week dropped its requirement that called for mandatory arbitration of such cases. Facebook followed suit a day later.
"We are publishing our updated Workplace Relationships policy and amending our arbitration agreements to make arbitration a choice rather than a requirement in sexual harassment claims," a Facebook spokesperson said in an email. "Sexual harassment is something that we take very seriously and there is no place for it at Facebook."
Arbitration is a private process whose proceedings and resolutions are often confidential, in which the employer often pays for and picks the arbitrator, giving the employer an upper hand from the start, advocates for workers contend.
"Forced arbitration agreements are a huge problem for workers," said Maya Raghu, director of workplace equality and senior counsel at the National Women's Law Center. "It makes them give up their right to their day in court in exchange for a job."
On Monday, Airbnb issued a statement saying the company would "not require our employees to use arbitration in cases involving discrimination in the workplace," and would do the same in cases involving sexual harassment. The changes, the company emailed, "reflect conversations we have had with employees and outside experts."
eBay also no longer requires sexual harassment claims to be settled through private arbitration. "We've adjusted our existing employee policy regarding sexual harassment claims to better reflect and encourage eBay's values of being open, honest and direct," a spokesperson emailed.
Square ended its policy of forcing employees into private arbitration in cases of sexual harassment at work, according to reporting from BuzzFeed News. The company didn't immediately respond to a request for comment.
"It's very positive. I don't think we would have seen it without the MeToo movement, without workers walking off their jobs," said Angela Cornell, a clinical professor of law and director of the Labor Law Clinic at Cornell Law School.
Microsoft was an early advocate for ending the agreements that critics contend help cover sexual harassment at work by keeping the claims out of court. In December 2017, it said it had dispensed with forced arbitration.
Uber and Lyft in May said they were eliminating forced arbitration agreements for employees, riders and drivers who make sexual assault or harassment claims against the companies.
"It is significant that in response to worker and public pressure, some large corporations are starting to change their practices and are restoring to workers the option of taking such claims to court," said Raghu. "It helps put pressure on their peers to do so."
Companies don't publicize the practice of requiring employees to sign such agreements, but they are believed to be widespread. More than half, at least 55 percent, of workers are subject to forced arbitration, estimated the left-leaning Economic Policy Institute in a recent report. Clauses typically cover a range of employment disputes, including sexual harassment and civil rights violations.
The changes Google and Facebook have made are important, yet limited, said Raghu. She noted the policy updates appear limited to sexual harassment and assault claims, and leave out other forms of harassment and discrimination. Further, Google's policy change is explicitly limited to "individual" claims and seems to still enforce arbitration for collective or class claims, in which workers join forces to challenge harassment or discrimination, she added.
The National Employment Lawyers Association, a trade group of lawyers who represent workers, believes 80 of the companies in the Fortune 100 use arbitration and at least 52 use forced arbitration, but an exact accounting is difficult.
As Terry O'Neill, the group's executive director, told The Washington Post: "It's remarkably difficult to find that out, because these are secret employment agreements."