Google 'Arbitration Optional' Harassment Plan Limits Groups
Google announced changes to how it will handle claims of sexual harassment among employees, including making arbitration optional for individual harassment and sexual assault claims. While additional transparency and protection for workers is a sign of progress, the change is incremental rather than transformative, because Google’s arbitration provision still prohibits collective action. Harassment claims will no longer be forced into private arbitration, but only individuals can now bring their claims before a jury.
It’s unclear whether Google, which has a history of confusing its employees around confidentiality, will make the process of opting out clear or easy. Google has become quicker and more responsive to employee concerns. Nonetheless, a publicized email from CEO Sundar Pichai and an accompanying interview in *The New York Times* still seem like the kind of gauzy public relations efforts that motivated 20,000 employees to join a protest last week to demand transparency and meaningful change. *The Times* reported last month that Google executives were allowed to leave with multimillion-dollar exit packages following credible claims of harassment against them.
Arbitration agreements can be used to obscure harassment allegations and protect serial abusers because employees are required to resolve disputes privately with an arbiter, who is typically paid by the company, rather than in open court. In Silicon Valley, forced arbitration agreements, nondisclosure agreements, and confidentiality clauses are routinely included in employment contracts, just as nondisparagement agreements are tied to severance packages and private settlements.
Organizers of last week’s walkout are disappointed with Google’s response, which they found defensive and dismissive toward their demands for equity. The changes signal the power of collective action, but organizers said they were not consulted ahead of the announcement. They said Google ignored concerns about discrimination and the rights of contract workers, indicating the company wants to continue operating as it has in the past, with transparency stressed in name rather than action. An internal Google website is tracking worker sentiment about whether demands—such as employee representation on the company’s board, which Pichai seemed to brush off—were met.
Google held a company-wide meeting for employees following the announcement. “Overall I felt the town hall was primarily the leadership team centering their own feelings as a performative show of appearing to listen, while substantively ignoring” concerns about gender and racial discrimination, and instead focusing only on harassment, says software engineer Irene Knapp, who participated in the walkout, and also introduced a shareholder proposal to tie executive pay to diversity goals at Google’s last shareholder meeting.
Knapp says it’s unclear whether Google can effectively fulfill the changes it promised. “The leadership team is congratulating itself already, before anything they’ve announced has even been launched—they wouldn’t let any of us get away with that.”
Last week’s walkout was unprecedented in terms of support from Google’s 94,000 employes. Although a wave of worker dissent has been rolling through Silicon Valley’s corporate campuses, it has been difficult to gauge what portion of the workforce shares those concerns.
Pichai’s announcement was delivered in a company-wide email. “We recognize that we have not always gotten everything right in the past and we are sincerely sorry for that. It’s clear we need to make some changes,” he wrote alongside a rough outline of plans, such as providing a transparency report “around sexual harassment investigations and outcomes.”
In the same paragraph outlining the arbitration change, Pichai stressed existing worker protections. “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,” he wrote.
But over the past couple of years, both employees and enforcement officials from the Department of Labor have questioned Google’s confidentiality policies, including a lawsuit that alleges the company’s internal process for investigating leaks is illegal. “This change looks like a step in the right direction,” says James Finberg, an attorney with Altshuler Berzon pressing a class-action lawsuit alleging gender bias in pay and promotion.
“Mandatory confidential arbitration can protect repeat sexual harassers, and result in more women becoming the victims of those harassers. Permitting women to file public lawsuits lets people in the company know about the bad behavior. Lawsuits, as opposed to individual arbitration proceedings, also permit women to band together, share resources, and bring about system change,” Finberg wrote in an email to WIRED.
He says the experience of one of the named plaintiffs in his suit, Kelly Ellis, is consistent with the report in The Times. “[Ellis] ended up changing departments, and eventually leaving Google, because a senior manager had been harassing her, and the company’s response was not to move him but to move her. Many women’s careers have been harmed by management not taking such complaints seriously and saying that it was their problem, not the problem of their accuser.”
The change to its arbitration policy brings Google in line with other influential tech companies like Uber and Microsoft, which have altered their binding arbitration policies in the past couple of years in response to disturbing revelations about sexual harassment from women and, in particular, women of color.
At Uber, too, changes came only as a result of internal protest from employees like former engineer Susan Fowler, attempts to sue the company, and public scrutiny over the abhorrent behavior of Uber executives.