Microsoft says it is "eliminating a requirement that employees pursue sexual harassment and gender bias claims through arbitration instead of in court, after revelations this year of improper behavior across technology, entertainment and other industries." The company is also "supporting a proposed federal law that would widely ban [forced arbitration] agreements."
That's fantastic news; it truly is. Other businesses should follow Mircosoft's lead.
But what about forced arbitration of racial harassment (and other race discrimination) claims? What about wage & hour claims? What about consumer-law claims by Microsoft's customers?
The legislation that Microsoft supports is sponsored by Senators Lindsay Graham and Kirsten Gillibrand. In trumpeting the legislation, Graham said “[t]o expect change without pushing for change is unrealistic. This legislation takes off the table the ability of employers to mandate arbitration before claims even arise. Mandatory arbitration employment contracts put the employee at a severe disadvantage. I do not oppose arbitration — if the parties willingly consent to the process." (emphasis mine)
Couldn't agree more with Senator Graham. Arbitration is often okay if it's agreed to after the dispute arises. It's very much not okay when it's forced on employees and consumers pre-dispute.
Senator Graham's press release says:
Forced arbitration clauses prevent survivors of sexual harassment from discussing the nature or basis of their complaint. If an employee’s contract or employee handbook includes a forced arbitration clause, the employee is likely to have signed away his or her right to a jury trial whether or not they are aware of the clause. Employees are far more likely to win cases that go to trial than cases that go through the arbitration process.
That puts it just right. The secrecy of the arbitration process is particularly pernicious as applied to sexual harassment claims. But each of the problems Graham outlines applies to forced arbitration generally.
(To Graham's great credit, he voted against the congressional repeal of the CFPB's arbitration rule.)