Opinion | End Forced Arbitration for Sexual Harassment. Then Do More.
On Nov. 1, more than 20,000 Google employees walked off the job in protest of the company’s handling of sexual misconduct. A week later, Google capitulated to some of the protesters’ key demands and announced the end to forced arbitration for its employees in relation to sexual harassment and assault claims. The very next day, Facebook followed suit with regard to sexual harassment claims. Microsoft, Uber and Lyft have taken similar steps in the past year.
Technology companies pride themselves on their cutting-edge, visionary nature. Now that they’ve taken the first step, here’s an opportunity for them to be early adopters, and national leaders, by making an even more impactful move: ending forced arbitration in relation to all employment-related disputes, not just sexual harassment. And given the extensive reach of these companies through their multitude of contractors, they should prohibit their contractors from forcing employees into arbitration, as well.
A quick refresher on why forced arbitration is so unfair to workers: Workers win less often in arbitration than in court, and when they do win, they get less money than they would in court. Arbitration is secret and shields wrongdoing from public view. There’s no right to appeal. Forced-arbitration provisions also usually bar class actions, which the Supreme Court blessed in a recent ruling allowing employers to force workers to waive their right to bring a group lawsuit, making it more daunting and difficult for people to sue their employers. And workers don’t genuinely agree to arbitration; they’re typically presented with a take-it-or-leave-it contract to sign if they want to put food on the table.
These problems with forced arbitration make it especially abhorrent in cases of sexual harassment. Being objectified, degraded or groped — these are violations of a highly personal and particular nature. But race discrimination and wage theft are pretty bad, too. It’s also degrading to be told to “go back to Africa,” which is what a former Tesla employee says happened to him. It’s also offensive to be made to work dozens of weekly overtime hours for no pay.
Of course, workplace violations of different types are often intertwined: The same employers that permit or perpetrate sexual harassment also commit a host of other violations — underpaying workers, discriminating in other ways or preventing workers from organizing. A case I handled long ago captures this. A group of women who worked for a dry cleaner came to our office because they were underpaid, working 56 hours a week for subminimum wages and no overtime.
As I investigated, I quickly learned how interrelated their problems were. The women, who were Latina, were paid less than their male co-workers. All of the Latino workers, male and female, made less than their non-Latino counterparts. No one made enough to live on, and everyone there was surely exposed to highly toxic chemicals. Over repeated meetings, another story also emerged: The boss routinely made leering comments to the women workers, told them to wear short skirts and, as I later learned, had sex with one of them in a La Guardia Airport hotel — consensually, he insisted. When I questioned him in sworn testimony about his behavior toward his female employees, he said, “Spanish women like it.”
How do you tease apart the sexism, racism and economic exploitation in this situation? You can’t. They’re inseparable. What brought the women to our office was their unlawfully low pay. But this was partly a result of discrimination against them based on their sex and national origin, and from an even broader viewpoint, it was a result of their lack of power or a voice on the job.
So why would it make sense to end forced arbitration in cases of sexual harassment only? Why should any company still block people from filing in court when they’re racially harassed or underpaid or paid less because of their national origin? All are offenses against human dignity, and in all of these cases, there is the same tremendous power differential that makes it so hard for people to speak up.
The workers who walked out at Google have lives very distinct from the immigrant women who spend their days pressing clothes. But at the root of sexual harassment, or any kind of workplace abuse, is abuse of power. Even a Hollywood legend like Gwyneth Paltrow didn’t speak up about Harvey Weinstein because she thought she would be fired.
Even if these companies stop using forced arbitration, their workers will still have plenty of reasons not to speak up: fear of retaliation (even though it’s illegal), fear of being blacklisted, difficulty finding a lawyer to take the case. And with President Trump remaking the judiciary in his image, federal court may soon not be such a great option, either. But at the very least, working people should have the chance to have their day, together, in court.
By ending forced arbitration only in cases of sexual harassment, Google, Facebook and their fellow technology companies have responded to public pressure, to the day’s news cycle. But it’s time to be proactive, not just reactive. There’s no logic to ending forced arbitration for sexual harassment only and leaving it intact for so much else.
In the end, the most compelling reason for a company to foist arbitration on its work force is to avoid liability and public exposure that might result from a court case. But if a company wants to avoid liability, blocking workers from court isn’t the best way to do that. The answer is to create a fair and lawful workplace, the best possible workplace, for everyone who contributes to a company’s success and to give workers a voice. That, and not a new phone or new app, is the kind of vision and disruption we need more of.
Terri Gerstein is the director of the Project on State and Local Enforcement at the Harvard Law School Labor and Worklife Program.
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