One week after 20,000-plus Google employees around the world staged a mass walkout to protest the company’s discrimination and its abysmal handling of sexual misconduct complaints against top-level executives — as the New York Times reported, multiple senior executives were granted multimillion-dollar severance packages or promotions after being accused of sexual violence — the company has announced revisions to its sexual harassment policy. Top of the list: An end to forced arbitration clauses.
In a memo to all employees, Google CEO Sundar Pichai detailed the changes employees could expect, and though the first bullet point about arbitration came with some defensive caveats (“Google has never required confidentiality in the arbitration process and arbitration still may be the best path for a number of reasons”), the change is a meaningful one that appears to be catching on among tech giants.
Chances are, you’ve signed a policy just like this one without even realizing it. As of 2017, more than half of American workers were bound by arbitration clauses, according to the Economic Policy Institute.
And if you didn’t sign one at work, you may have signed one elsewhere: In May, Uber announced it would be eliminating forced arbitration agreements for employees, riders, and drivers who make sexual assault or harassment claims against the rideshare company. Which means, until May, if you were an Uber rider, buried in the Terms & Conditions that virtually no one reads was language that forbade you from taking a sexual misconduct claim against Uber to the courts.
As the New York Times reported, Uber already allowed drivers and employees to get out of those agreements as long as they opted out within the first 30 days of signing their Uber contracts — but no such provision was in place for the riders.
Last December, Microsoft announced that it was eliminating forced arbitration agreements with employees who make sexual harassment claims. The company also declared its support for a proposed federal law that would essentially ban these still-commonplace agreements. “The silencing of people’s voices has clearly had an impact in perpetuating sexual harassment,” Brad Smith, Microsoft’s president and chief legal officer, told the New York Times.
And it was a forced arbitration clause that Fox Chairman and CEO Roger Ailes lorded over Gretchen Carlson, who sued him for sexual harassment in 2016. He fought back by pointing to the language in her Fox contract that barred her from bringing those claims to court and requesting that the court compel Carlson to engage in arbitration instead.
Carlson’s contract didn’t just stop her from bringing her claims to the justice system; it stipulated that “all filings, evidence and testimony connected with the arbitration, and all relevant allegations and events leading up to the arbitration, shall be held in strict confidence.” At least a dozen women reported similar experiences, with parallels not just to the initial harassment but with Ailes’ weaponizing of legal language in their employment contracts.
Other changes to Google’s sexual harassment policy, according to Pichai’s memo, include: “more granularity” around sexual harassment investigations and outcomes; an “overhaul” and consolidation of the means by which employees can report misconduct; “extra care and resources” for Google employees throughout the reporting process, with “extended counseling and career support”; and updated and expanded mandatory sexual harassment training, with failure to comply resulting in negative performance reviews.
Left unaddressed are workers’ demands that the internal harassment report be made public and that an employee representative be added to Google’s board. Only full-time employees are covered by the changes Pichai describes; contractors, vendors, and temporary workers are not.
Google Walkout For Change, the organizers behind last week’s mass demonstration, issued a statement that “commend[ed] this progress, and the rapid action which brought it about,” but called out what the workers’ perceive as the memo’s shortcomings. Mainly, “The company must address issues of systemic racism and discrimination, including pay equity and rates of promotion, and not just sexual harassment alone.”
“The response ignored several of the core demands — like elevating the diversity officer and employee representation on the board — and troublingly erased those focused on racism, discrimination, and the structural inequity built into the modern day Jim Crow class system that separates ‘full time’ employees from contract workers. Contract workers make up more than half of Google’s workforce, and perform essential roles across the company, but receive few of the benefits associated with tech company employment. They are also largely people of color, immigrants, and people from working class backgrounds.”
Last year, Senators Lindsey Graham (R – SC) and Kirsten Gillibrand (D- NY) introduced legislation that would void arbitration agreements that prevent sexual harassment victims from seeking justice through the courts. It also allows victims to file EEOC complaints in addition to pursuing legal action in court, and it prevents employers from compelling arbitration, even in cases where the employee already signed an agreement with a forced arbitration clause.
A bill similar to the one introduced in the Senate, the Ending Forced Arbitration of Sexual Harassment Act of 2017, was introduced in the House by Rep. Cheri Bustos (D-IL). It
has bipartisan support and has been referred to the House Judiciary Committee. In 2019, with a Democratic majority in place, the House might actually pass it.