On Thursday, following pressure from 20,000 employees who staged a walkout to protest its sexual harassment policies, Google announced it would end its policy of forcing workers to settle sexual harassment claims through private arbitration, allowing employees to pursue those claims in court.
Then, on Friday, Facebook said it would also end the practice.
But they weren’t the first big companies to take the leap away from a controversial tactic that critics say can, in some cases, protect serial harassers and silence victims who might not come forward, unaware of other claims that may be shielded from public view:
• In December 2017, Microsoft said it had eliminated forced arbitration for employees who had sexual harassment claims.
“It’s taken a little bit of time for other tech companies to follow [Microsoft’s] lead, but I think it does point out the importance of corporate leadership on this issue,” said Maya Raghu, director of workplace equality and senior counsel at the National Women’s Law Center. At the very least, “it does show the importance of its impact on peers,” or competitive firms.
Still, whether more corporations will jump in line — reversing an approach that has been scrutinized in the #MeToo era — is not yet clear. Even if they do, the new policies apply only to individual sexual harassment or assault claims — not other discrimination or harassment complaints — and come at a time when, because of a recent U.S. Supreme Court ruling, companies may be even more motivated to add arbitration agreements to the documents they have workers sign.
“I do think you’re going to see more of it,” said Debra Katz, a Washington-based lawyer who frequently represents plaintiffs in harassment and discrimination cases. “If you want to have as a principle of your company that you care about sexual harassment, this is a minimal gesture.”
Mandatory or forced arbitration is made possible when workers, often at the time they are hired, sign documents in which they agree to settle disputes out of court, where an arbitrator rather than a judge and jury decides a case on its merit. Research has found that employers win more often when they use the same arbitrator repeatedly, suggesting companies may return to arbitrators who do not rule in favor of employees, as well as that employees tend to see much lower damage awards in arbitration than they do in outcomes decided by federal or state courts.
The prevalence of such arbitration agreements can be hard to pin down precisely because of their private nature, but one study by the Economic Policy Institute, a left-leaning think tank, found that more than 60 million workers may have signed such an agreement. Terry O’Neill, executive director of the National Employment Lawyers Association, a trade group of lawyers who represent workers, said her organization believes that 80 of the companies in the Fortune 100 utilize arbitration and at least 52 use forced arbitration.
“It’s remarkably difficult to find that out,” she said, “because these are secret employment agreements.”
Some lawyers who represent employers say it’s too early to tell how many companies will follow suit.
“Our clients are evaluating what is the best course of action given their strong support for the benefits of arbitration and their respect for the goals of the #MeToo movement,” Margaret Rosenthal, a partner at BakerHostetler, said in an email.
Others think it could spread to industries such as Hollywood or entertainment that have come under fire amid the #MeToo movement or that are more competitive when it comes to recruiting and retaining top employees.
“Certain industries like high tech are probably more receptive to that because of the competitiveness of their job market,” said Benjamin Ebbink, a lawyer with Fisher Phillips in Sacramento. Tech “has been a very high-profile industry for many years now about their employment practices, and I think they’re uniquely receptive to these issues in that industry.”
Still, even if it’s unclear how widespread the practice could become, some applauded the move by Google and Facebook.