This month, Main Street Americans and public interest groups began banding together to push technology companies such as Google, Microsoft and Twitter to stop putting forced arbitration clauses in their employment contracts. These insidious provisions deny victims of discrimination and harassment — including sexual harassment — the right to air their claims in public courts, consigning them to secret arbitration systems that are biased in favor of employers and deny employees the rights and protections afforded by the civil justice system.
Forced arbitration clauses, also known as “rip-off clauses,” frequently are hidden in the fine print of “take-it-or-leave-it” agreements. These clauses deprive people of their day in court when they are harmed. Because they constitute a corporate Get Out of Jail Free card for wrongdoing, they are ubiquitous in contracts governing bank accounts, student loans, cell phones, employment and even nursing home admissions.
{mosads}Last year, the Trump administration started rolling back protections for two vulnerable populations put in place during the Obama administration that would have prohibited rip-off clauses in student loan contracts and nursing home contracts. Both groups are unlikely to fully comprehend the magnitude of signing away their rights to justice and may not be thinking about potential harms down the road like physical or sexual abuse or a worthless college degree.
In addition, President Trump signed off on a congressional move that overturned a critical protection that would block people from banding together if they are the victims of financial abuses such as the Wells Fargo fake account scandal. Because the Trump administration and some members of Congress are in favor of letting corporations use rip-off clauses to evade accountability, it is critical that forward-thinking companies do the right thing and voluntarily change their policies.
Rip-off clauses in employment contracts can stop justice for systemic wrongdoing in the workplace, including for sexual harassment. According to the Economic Policy Institute, 60.1 million workers, more than half of nonunion, private-sector employees, have signed away their right to go to court if harmed by their employer. That means harassment allegations by employees at those companies are being heard in secret forums, outside of the public eye, allowing wrongdoing to continue.
It’s not just progressive voices calling for these needed changes, though. In a rare gesture of bipartisanship, all 56 attorneys general (in every state, the District of Columbia and territories) urged Congress to immediately enact legislation that would ban forced arbitration for sexual harassment claims. The letter said, “Victims of such serious misconduct should not be constrained to pursue relief from decision makers who are not trained as judges, are not qualified to act as courts of law and are not positioned to ensure that such victims are accorded both procedural and substantive due process.” In addition, conservative commentator Gretchen Carlson has been a vocal opponent of arbitration clauses to silence victims of sexual harassment.
It is telling that a fairly obscure issue such as forced arbitration could unite attorneys general in our country and unify former opponents around the issue, and it shows clear recognition that rip-off clauses constitute a sham form of justice for individuals who are pitted against powerful corporate interestsOur nation is facing a reckoning. From Hollywood to the halls of Congress, and in factories and restaurants across this country, many no longer will silently allow discrimination and harassment at the hands of bosses and colleagues to go unchallenged.
Like other industries, technology companies have had a number of high-profile #MeToo scandals. However, forced arbitration provisions in the technology sector are particularly egregious because many of these companies go out of their way to nurture reputations as progressive companies seeking to do good in the world. Take, for example, Google’s code of conduct urging employees, “Don’t be evil.”
Some tech companies are heading in the right direction toward ending the use of forced arbitration in their employment contracts. Recently, Microsoft took an important first step by banning the use of forced arbitration provisions pertaining to claims of sexual harassment. Public Citizen applauds this step, but we urge Microsoft and all companies to completely ban the use of forced arbitration in employment contracts for all claims of discrimination and harassment.
Tech companies can choose to stand on the right side of history, or be a stubborn roadblock to justice. Responsible companies, not just those in the technology sector, should stand with their employees on the right side of history.
Remington A. Gregg is counsel for civil justice and consumer rights at Public Citizen, where he fights to ensure access to justice for all people and protect American consumers from corporate abuses. Follow him on Twitter @ragregg.