Take the issue of forced arbitration and gender discrimination. Last year, we closed out the summer with Roger Ailes trying to force Gretchen Carlson’s sexual harassment lawsuit into private, secret “forced arbitration,” sparking outrage. (He eventually gave up and settled.)
This year - actually today as we write this - the importance of class action lawsuits to remedy systemic gender workplace discrimination is the topic of a powerful new New York Times op ed from Anita Hill, titled, "Class Actions Could Fight Discrimination in Tech.” As one reader wrote, “Anita Hill has earned her wisdom the hard way, and her advice should be taken seriously by women employed in the tech industry.” So heed these words:
The tech industry is stuck in the past, more closely resembling “Mad Men”-era Madison Avenue or 1980s Wall Street than a modern egalitarian society. It may take the force of our legal system to change that.…
We can’t afford to wait for the tech industry to police itself — and there are few indications that it will ever do so. …
Instead, women in the industry should collectively consider their legal options. Top among these would be class-action discrimination cases against employers.
The tech sector is not the first white-collar “boys’ club” to demand an industrywide correction. In the 1990s, Wall Street firms faced a slew of class-action discrimination lawsuits. Perhaps the most notable was the 1996 “Boom-Boom Room” case. A group of 23 women filed a class-action lawsuit against the Smith Barney stock brokerage firm, charging it with rampant harassment and gender discrimination. By the time Smith Barney settled the case for $150 million, nearly 2,000 women had joined the suit and helped expose a culture of sexism to the outside world.
As a result of this and other cases that similarly challenged systemic practices at other Wall Street firms, many of these companies now have more extensive human-resource policies addressing sexual harassment and gender discrimination. While pay and promotion discrimination still exists, more women on Wall Street are advancing in their careers to managing directorship and other leadership roles. The lesson of these cases is clear: Class-action lawsuits can force industrywide change, even in the most entrenched, male-dominated industries.
Women in tech no doubt have hurdles to bringing class-action lawsuits, including the requisite preponderance of statistical evidence and the prevalence of confidentiality clauses and arbitration agreements, which are, in effect, designed to pre-empt class actions. But this challenge doesn’t mean the suits cannot be brought, or won. This is a route that the women of Silicon Valley should consider, especially if regulation is not an immediate and viable solution.
Unfortunately in many cases, forced arbitration clauses mean that "suits cannot be brought, or won," which is why Gretchen Carlson has become so active and outspoken on the issue. Every industry is trying to using these clauses to duck liability and responsibility for breaking laws and causing harm. Now they are getting some help from the Trump administration. In fact, if you can’t get enough of forced arbitration this summer, do check out the Center for Justice & Democracy’s comments to nasty Trump agencies that want to force arbitration on abused and neglected nursing home patients and defrauded students.
- Comments Objecting to CMS Forced Arbitration Rule for Nursing Homes
- Comments Objecting to Department of Education Forced Arbitration Class Action Waiver Actions
Summer o’fun, what can we say?
Ponder all of that for a few weeks, loyal readers. We’ll be trekking around some mountain somewhere, hoping to forget the damage our President is doing, and hoping for a much better Fall (as in “season,” not “off the mountain”). You get it, right? See you after Labor Day!