#MeToo … but what about them?
By Tanuja Gupta, founder of Googlers for Ending Forced Arbitration and an original organizer of the Google Walkout.
As I watched President Biden sign the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act into law last month, my hands clapped and my heart sank at the same time. As an activist who’d spent years fighting forced arbitration, part of me was proud to have played a small role in this moment where survivors everywhere would now have access to the justice system — taking their harassers before a real judge instead of being forced into secret arbitration. But part of me wondered when this day would come for all the other workers I’d met over the last three years, whose lives were also ruined by being forced into arbitration.
When Peter Perez reached out seeking help from Googlers for Ending Forced Arbitration, the organization I founded, he and his wife Glenda were about to have their lights shut off because they couldn’t pay their electricity bill. Both had lost their jobs at Cigna due to racial discrimination, and had drained their savings covering the needs of their three children and paying arbitration fees. Richard Heggins, one of the thousands of Chipotle workers who had their wages systematically and automatically stolen, is still the guy who bolted back to work after a Congressional hearing because he just had to “pay those bills”. They all knew that if megastar musician Jay-Z and NFL football coach Brian Flores couldn’t escape forced arbitration, what chance did any other person of color have? The answer is none, because even white movie stars like Scarlett Johansson and Navy reservists like Kevin Ziober are still waiting for justice.
Americans have now been waiting for decades. And as they wait, the arbitration clauses in employment agreements continue to balloon to force not just arbitration, but also force rules like prohibiting workers from talking publicly about their cases, requiring the payment of steep fees, and requiring that arbiters be picked and paid for by the employer. And perhaps most egregiously, these agreements now ban class action lawsuits, severely restricting workers’ ability to piece together patterns of system wrongdoing. Arbitration is forced for any claim of discrimination based on race, gender, sexual orientation, veteran status, disability, immigration status, caste or pregnancy. Workers illegally paid below the minimum wage (or not at all) cannot sue their employers either.
And it’s not just workers anymore. Did your mother die due to the negligence of her nursing home? Too bad. Unnecessarily paid TurboTax to handle your taxes when you could have filed for free? Your bad. Trying to hold a dating app like Grindr accountable for illegally sharing your private data? Good luck. Rented out your home through AirBnB and didn’t get paid? Try again. Are you a Robinhood trader who lost access to purchasing stock? You’ve also lost access to the justice system. Forced to pay DirectTV early termination fees? You’ll also be forced into arbitration.
Members of Congress were interested to hear my story and stories of other people like Gretchen Carlson. But there are other stories they will never hear because of gag rules. So when people are brave enough to break their confidentiality requirements, Congress must listen. This is a 50-state issue — name a state and I’ll name you a worker or consumer whose life has been ruined by being forced into arbitration.
As a leader of the Google Walkout, I know how listening to these experiences transformed my own fight for justice within the four walls of Google. After the walkout in 2018, my employer immediately changed its policy to end forced arbitration for individual cases of sexual harassment. Like last month’s law, I knew this change was good, but not good enough. Google had no right to pick and choose which harms could go to arbitration versus which could go to trial. So my colleagues and I spent months educating our colleagues and executives on the intersection of harassment, discrimination, privacy, wage theft and retaliation. In February 2019, Google ended forced arbitration for all claims.
Well, we’ve been educating Congress for years now. It’s time for all lawmakers to stand up to their campaign donors, who are often the companies who force arbitration on consumers and workers, and return the choice of arbitration or jury trial back to American citizens. Because as Senator Graham (R) has publicly stated, “It does not hurt business to make sure that people who are harassed in the workplace get treated fairly. It’s better for business.” Congress should pass the FAIR Act (Forced Arbitration Injustice Repeal Act, HR 963 and S505) to end forced arbitration for all Americans.
