There’s been another round of employee drama at Google these past few weeks. After The New York times published an explosive story on how the company previously protected one of its star engineers, Andy Rubin, amid a sexual misconduct investigation, Google CEO Sundar Pichai revealed the company has fired 48 employees for sexual harassment in the last two years.
On Thursday, Google published new policies for how the company will handle sexual harassment after employees staged a walkout and sent the company a list of five demands.
Employees didn’t get everything they wanted, but they did get their top demand: an end to forced arbitration for sexual harassment cases.
In a memo, Pichai announced the new policy, while also defending Google’s general policy of forced arbitration by claiming it never required confidentiality.
He wrote, “We will make arbitration optional for individual sexual harassment and sexual assault claims. Google has never required confidentiality in the arbitration process and arbitration still may be the best path for a number of reasons (e.g. personal privacy) but, we recognize that choice should be up to you.”
Forcing employees to sign agreements forbidding them to sue the company, and to instead go to arbitration, is one of the key ways a company can keep its dirty laundry secret.
Arbitration is a private process that doesn’t produce public court documents or public court decisions. It can also make it more difficult for employees to band together to file class-action lawsuits.
And settlement agreements may also include a gag order, forbidding the employee to talk about their experience, even if they won the case.
Mix it all together and you get a perfect combo where a company’s incentives to cover things up can seem more alluring than to banish illegal behavior or misconduct and see that it doesn’t happen again.
With private arbitration, even if the company fires the employee (and that doesn’t always happen), a new employer has no easy way to know about the underlying incident, freeing the employee to continue engaging in the same behavior at the new company.
Forcing employees to agree to arbitration as a condition of employment has become common practice in corporate America today. And it is standard practice in Silicon Valley. It is so common that Susan Fowler, the famed engineer who wrote about her experience with sexual harassment at Uber, petitioned the Supreme Court about a year ago, arguing that the practice should be banned.
While Google clearly hasn’t given up forced arbitration in general, making it optional for sexual harassment cases is a huge step for Silicon Valley.
Alone, this one company’s choice won’t end Silicon Valley’s well documented bro culture problems.
But the thing is, Google isn’t alone. About a year ago, Microsoft also removed its forced arbitration clause for sexual harassment claims and endorsed a Senate bill attempting to make such a change the law of the land.
Uber followed suit in May.
Ideally, companies would simply stop making their employees waive their rights to sue in regular courts for every issue, not just sexual harassment claims.
But for now, a slow and steady wave of change is happening on this front. Perhaps Silicon Valley can even become a beacon for other industries, with well-publicized sexual harassment issues like media and finance, to do the same.
Ultimately, the freedom of employees to go public with sexual harassment claims should they choose to will shed some much-needed light on a situation that has been allowed to fester in the dark far too long.