How US employers silence sex accusers
Hundreds of staff at Google offices around the world have walked out in protest at sexual harassment and unequal pay for women.
One of their key demands is ensuring women can settle misconduct claims in the courts, but why can’t many do so already?
A female staff member at Google is harassed.
She complains to her boss.
She goes through an internal grievance hearing, then an arbitration process and loses.
But if she wants to go public with her claims before a court of law, she can’t.
Google is one of many companies which gets employees to sign “forced arbitration” agreements, requiring all discrimination cases – not just sexual harassment but also racism and equal pay disputes – to be resolved internally, with no judicial oversight.
It means they can’t sue their bosses if they’re unhappy with that outcome.
One well-publicised example of this was when Fox News anchor Gretchen Carlson first made a complaint about sexual harassment at the network. She said the channel’s former boss Roger Ailes asked her for sexual favours. When she rebuffed his advances, she says her pay was cut and she was later fired.
Ms Carlson’s contract with Fox News included a forced arbitration clause, which meant she couldn’t settle the case in court.
But she got around that by suing Ailes directly for violating human rights law.
Ms Carlson won $20m and Ailes, who died earlier this year, issued an apology. Her case encouraged other women at the network to come forward with claims.
It’s unclear how exactly she got around the loophole because a confidentiality agreement limits what Ms Carlson can say about it. But her case highlights the secrecy that allegations of sexual harassment can be shrouded in.
The #MeToo moment might have made it easier for women to share their experiences, but many argue it’s done little to change the law.
More than half (53.9%) of US employers have forced arbitration processes in place, according to the Washington DC-based Economic Policy Institute. For larger companies, with more than 1,000 employees, the figure is even higher at 65.1%.
By their calculations this means that more 60.1 million American workers (both men and women) can’t go to the courts to protect their employment rights.
Their research says this is more common in low-wage workplaces, and those that have disproportionate numbers of female or African-American workers. It also states that the practice is most widespread in Texas, North Carolina and California – which is where Google is headquartered.
The protests outside the tech giant’s offices reflect a growing anger over forced arbitration, which has already forced some big US companies to change course.
Earlier this year both Uber and Lyft did away with mandatory arbitration and confidentiality agreements to settle sexual harassment claims. Accusers working for both firms are now free to pursue public lawsuits.
Before that, back in December, Microsoft also got rid of forced arbitration clauses.
“The silencing of people’s voices has clearly had an impact in perpetuating sexual harassment,” Brad Smith, the company’s president and chief legal officer, told the New York Times at the time.
Microsoft is one company that is supporting a change in the law, to allow accusers to take their cases to court.
A cross-party bill, the Ending Forced Arbitration of Sexual Harrassment Act (EFASHA), was presented to Congress last year.
The bill would, as its title suggests, make it illegal for companies to enforce mandatory arbitration agreements for sexual harassment and discrimination claims, such as equal pay issues.
“If EFASHA is enacted, it will not just be a game-changer – it will be a world-changer for companies using employee arbitration agreements,” lawyer Demetri Economou argues in his blog, Law in the Workplace.
Another bill also before Congress would force companies to disclose the number of settlements made with employees over claims of sex discrimination, including verbal and physical sexual harassment.
It’s unclear whether either of these bills would get enough support in Congress, and even if they did, whether the president would sign them.
But some states are now starting to make changes in the wake of #MeToo.
A number have passed laws restricting secrecy around these cases – the so-called non-disclosure agreements – which prevent people from speaking publicly about sexual harassment claims or payouts.
California has passed a range of post-#MeToo laws, including the Stand Together Against Non-Disclosures Act, and Arizona now bans non-disclosure agreements for settlements with public officials accused of sexual assault.
The states of Vermont, Washington, Tennessee, New York and Maryland also have similar laws demanding transparency around harassment cases.
Of course anyone with a serious criminal complaint of sexual assault can always to go the police, but getting redress for sexual harassment remains a challenge.
The workers who have picketed at Google hope they can shine a light on the issue and push for greater transparency.
Months on from the start of the #MeToo moment there are more voices with the confidence to share their stories.
But for many of them it’s not just about being heard, it’s about being able to be heard fairly.
Follow Rajini Vaidyanathan on Twitter – @BBCRajiniv