Editor’s note: On Nov. 1, more than 20,000 Google employees around the world staged a walkout to protest the company’s handling of workplace sexual harassment and sexual assault claims. Seven days later, Google ended its mandatory arbitration policy for handling such claims, allowing workers to litigate their complaints in court. Ryan Lamare, a professor of labor and employment relations at Illinois, spoke with News Bureau business and law editor Phil Ciciora about the consequences of ending forced arbitration.
What’s at stake in the tech industry worker protests?
The tech industry protests – in which thousands of workers have walked out at Google, Facebook, Tesla and other tech companies – were aimed at protesting discriminatory treatment in the workplace in conjunction with the #MeToo movement, as well as what rank-and-file workers saw as discriminatory behaviors in the tech industry and its work culture.
And in response to those protests, tech company leaders such as Google CEO Sundar Pichai have said they’re not going to address the issues with Silicon Valley culture, but have somewhat acquiesced to worker demands by promising to end something called “mandatory arbitration,” a policy that has been a source of significant controversy for years.
What is mandatory arbitration?
Mandatory arbitration – or “forced arbitration,” as it’s been referred to in other places – is the employer practice of requiring employees, as a condition of their employment, to sign agreements where they waive their right to pursue any future complaints in court against the company. Instead, they agree to resolve those complaints in a private setting via arbitration.
If a worker feels as though they’re being discriminated against on the basis of age, disability, gender or some other protected status, they no longer take those complaints to court but go through arbitration, which is a closed-door setting. That’s good and bad, because the privacy issue cuts both ways: It keeps sensitive employee issues out of the public arena and offers an opportunity to resolve them relatively efficiently and informally, but it can also be used to conceal problematic organizational behavior and practices.
What does your research find about mandatory arbitration, and how does it apply to current events?
A new paper I co-wrote with David B. Lipsky of Cornell University argues that discrimination claims, such as sexual harassment, largely fared worse in arbitration than did other statutory or nonstatutory claims such as wrongful termination or breach of contract.
Ultimately, Google and the other tech companies that are ending mandatory arbitration for sexual harassment claims in response to these protests are doing so more as just a signaling device. It’s a way of giving workers something – throwing them a bone. But these companies need to do much more if they want to address the root of the problem.
Workers may feel that there’s more procedural justice – they have more agency to pick which forum to go into to adjudicate their claims, which will likely make them happier about the process. But the court system isn’t exactly a panacea for plaintiffs who have workplace discrimination complaints, and outcomes are likely to be inequitable no matter where employees go. We found that discrimination claims like sexual harassment fare poorly in arbitration – but that doesn’t mean they would fare any better in the courts. And in fact, when discrimination complaints were allowed to leave the system, many people actually opted to stay in arbitration, which implies that at least some individuals perceived that arbitration forums provided at least equal value in resolving their complaints.
From the perspectives of all parties involved, is this “mission accomplished”?
Any notion that Facebook and Google have solved the problem by ending mandatory arbitration for sexual harassment is a little too simple. Ending mandatory arbitration is good in that it gives employees choice over where they want to take their disputes, and it allows the public a chance to see what’s going on at these companies. But it won’t necessarily produce better outcomes for these employees. And if this is the only step these companies take, it implies that arbitration as a dispute-resolution practice is more of a villainous thing that it really is. So on its own, this represents really more of a concession rather than meaningful cultural reform.