Firms follow Google trend in ending mandatory arbitration

Protestor demands, the fear of future protestor demands, or having never had such a policy in place in the first place have put an onus on companies to make it a point to assert that their employees do not have to stay quiet about sexual harassment and sexual assault claims.

The most prominent example of late is Google, which announced this month that it will, among other changes, “make arbitration optional for individual sexual harassment and sexual assault claims.” Google said it has “never required confidentiality in the arbitration process” and that arbitration still may be the best path for several reasons—such as personal privacy—but that the company recognizes the choice should be up to the victim.

The impetus to overhaul its policies followed the well-publicized walkouts of thousands of Google employees who protested the tech company’s handling of past sexual harassment claims, after The New York Times reported that Google paid millions in exit packages to former male executives accused of harassment and then—as with Wynn Resorts—tried to sweep the allegations under the rug. Protestors produced a list of demands, among which they called on Google to end private arbitration in sexual harassment cases.

Google is not the only tech company to have made changes to its policies. Facebook also announced that it will now allow employees to pursue claims in court rather than settle them through private arbitration. Both online hospitality-service company Airbnb and transportation company Lyft earlier announced similar changes to their policies.

“We will not require our employees to use arbitration in cases involving discrimination in the workplace,” an Airbnb spokesperson said. “Additionally, we will not require employees to use arbitration in cases involving sexual harassment. We’re proud that these changes will allow employees to choose how to resolve their concerns and believe this is the right thing to do for our employee community.”

In May, Lyft similarly announced changes to its policy: “Lyft drivers, riders, and team members are free to resolve individual claims of sexual harassment or assault however they prefer,” the company stated. “We won’t require arbitration for individual claims of sexual assault or sexual harassment. Survivors can choose to resolve their claims through arbitration, through mediation, or in court.”

Lyft’s policy continued: “Lyft will not require a confidentiality provision that would prevent survivors from speaking about the facts of the sexual assault or harassment they suffered. Someone who’s survived sexual assault or harassment may ask for a confidentiality provision in a settlement agreement, or they may decide to tell their story publicly to help end the stigma of silence for others. Whatever they decide, it will be their choice.”

Lyft’s competitor, Uber, tells Compliance Week it, too, “ended forced arbitration for individual claims of sexual assault and sexual harassment earlier this year.” 

eBay also responded, confirming that it no longer requires sexual harassment claims to be settled through private arbitration. “We’ve adjusted our existing employee policy regarding sexual harassment claims to better reflect and encourage eBay’s values of being open, honest and direct,” an eBay spokesperson says.

Other prominent companies—including Amazon, Twitter, Intel, and Oath—all say they’ve never required mandatory arbitration of sexual harassment claims.

Some states—including New York, California, Vermont, Washington, and Maryland—now ban the use of mandatory arbitration clauses altogether, prohibiting companies from requiring that claims of sexual harassment be resolved through arbitration. But companies that are truly looking out for their employees shouldn’t change their sexual harassment policy merely to satisfy a regulatory mandate; they should do it because it’s the right thing to do—and because employees are not just speaking up; they’re speaking out.

And … they’re being heard.

That should be enough for any ethics and compliance function, legal function, senior leadership team, and board to take notice.