Susan Fowler, the former Uber engineer whose blog post about sexual harassment and troubling internal workings led to the departure of CEO Travis Kalanick, is backing new legislation that aims to give victims of sexual harassment and other workplace discrimination the freedom to seek legal action, and to do it publicly.
Fowler is lending her support to bill AB-3080 — proposed by California Assemblywoman Lorena Gonzalez Fletcher, the California Labor Federation, and the Economic Policy Institute — which would forbid employers from the practice of forced arbitration in response to discrimination complaints.
The proposed legislation tackles a worrying norm in which companies, including throughout tech, mandate that employees air any grievances before a private, third-party arbitrator who is typically paid for by the company itself.
The hearings happen in secret, with non-disclosure clauses preventing the claimant from talking about the details or filing a class-action lawsuit, and they are on the rise. The percentage of nonunion, private-sector employees covered by mandatory-arbitration clauses has more than doubled since the early 2000s, according to a study last year by the Economic Policy Institute, a think tank in Washington, D.C.
Though the issue has come up periodically in Silicon Valley — venture firm Kleiner Perkins tried to force former employee Ellen Pao into arbitration when she sued the firm for gender discrimination — it hasn’t received widespread attention “for the same reason that it hasn’t gotten much attention from people who work in other industries,” says Fowler via email. “They don’t realize that it affects them, and they don’t realize how widespread and sinister the problem really is.”
Fowler says that she was “one of those people” for most of her life, knowing nothing about forced arbitration until she experienced what she describes as illegal treatment at Uber, after which she says she discovered that she “had no way to get justice.”
Now that she knows about forced arbitration, she says, “I’m hell-bent on bringing attention to it and doing everything I can to prevent what happened to me at Uber from happening to anyone else.”
The proposed legislation isn’t the first of its kind. A 2015 bill banning mandatory arbitration agreements as a condition of employment wended its way all the way to California Governor Jerry Brown’s desk. Faced with stiff opposition from the California Chamber of Commerce, which labeled it a “job killer,” Brown vetoed the bill.
Caitlin Vega, legislative director of the California Labor Federation, an organization that works with 1,200 labor unions across the state, is hoping the timing is better for AB-3080 given the #MeToo movement and the awareness it has raised around sexual discrimination and harassment in particular.
Vega also says the bill differs from its predecessor in ways that may make it more palatable to Governor Brown. For example, gone is language that required that any waiver of any legal right by an employee must be knowing and voluntary, in writing, and may not be an express condition of employment.
This time, the focus is more narrowly on ensuring that people not be forced to agree to potential arbitration as a condition of their employment and that employers be prohibited from “threatening, retaliating or discriminating against, or terminating any applicant for employment or prospective employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of specific statutes governing employment.”
Either way, proponents — including Fowler — hope far more attention will be paid to the bill’s benefits instead of to the perceived benefits to corporations in continuing to use arbitration agreements widely.
“The dominant view is that it helps manage long-term legal risk, ensuring that companies won’t become embroiled in costly, drawn-out lawsuits,” Fowler wrote in a recent op-ed for the New York Times. Yet the ” examples of Uber and IBM show that the opposite is true: Forced arbitration leads to long-term operating risk. Forcing legal disputes about discrimination, harassment and retaliation to go through secret arbitration proceedings hides the behavior and allows it to become culturally entrenched,” she added.
Fowler has said that she believes instead that a choice between optional arbitration and a public lawsuit would be the ideal solution for dealing with discrimination.
That was the case for her time at Uber, which had a clause in her employment contract that prevented her from going public with what had happened. The company did take steps after Fowler went public with her story — including hiring Eric Holder to conduct a company-wide investigation (which Uber said included firing people). Kalanick also later resigned after a wave of controversies made his position untenable. By then, however, the company’s reputation to outsiders was shattered.
Fowler is determined to bring about change. Last year, she filed an amicus brief in three high court cases, asking the Supreme Court to consider that class and collective action bans in workplace arbitration agreements violate federal labor laws.
She appears to be far from done with this issue, too. “Arbitration agreements are present in nearly every employment agreement,” she tells TechCrunch. “If you have a job, chances are you’ve unwittingly signed away your constitutional right to sue your employer if you ever experience illegal treatment like harassment, retaliation, or discrimination.
“You probably didn’t realize that you signed away this right because the language used in forced arbitration agreements is thick with legalese so heavy you need a law degree to understand what it all means.” Most important to know, she says: given the near ubiquity of arbitration agreements right now, “you probably signed away your right to sue before you even started your job.”
The new legislation is being announced formally today. After a period of public review, it will then head into committee hearings. If all goes as Fletcher hopes, the bill will then go to the Assembly floor, then the Senate floor, before heading to Governor Brown by late summer.
Sometimes when I tell people this, they laugh, because it sounds impossible.
And then I tell them that no, I'm serious: this is the hill I am willing to die on. https://t.co/c1UL1MiR64
— Susan Fowler (@susanthesquark) April 17, 2018