Google ends forced arbitration of sexual harassment claims. Should you? Then what?

The last month for Google has been big for tech and employment law nerds alike. And I just happen to check both boxes.

On the tech side, Google released the latest versions of its flagship phone, the Google Pixel 3 and Pixel 3 XL. And since this is an employment-law blog, that’s all I have to say about that.

Googlers protest workplace harassment.

Meanwhile, earlier this month, many employees of Google engaged in a mass walkout to protest working conditions, specifically harassment claims and treatment of those accused of violating company policy. For example, The New York Times recently reported that Google paid $90M to a man accused of sexual harassment. Not the victim, the accused. Marie Hicks, reporting at The Verge, recently wrote about the long history behind the Google Walkout.

The protest worked.

On November 8, Google CEO Sundar Pinchai announced that the company would no longer require employees claiming sexual harassment or sexual assault to arbitrate those claims. (Mr. Pinchai also promised more transparency around workplace investigations, overhauled reporting channels, mandatory training, and a re-commitment to “diversity, equity and inclusion.”)

Can you require arbitration of sexual harassment claims? Should you?

Google is not the first large tech company to make arbitration of sexual harassment claims optional. Back in December,  Microsoft ended forced arbitration of sexual harassment claims.

Many of you work for companies that don’t require employees to arbitrate any employment-related claims. Those claims go to court. So, the Google news won’t move the needle much for you, if at all.

Conversely, a few of you may have businesses that operate in states — New York is one example — that already ban forced arbitration of sexual harassment claims. Other employers in other states may have already beaten Google to the punch by carving out sexual harassment claims from your arbitration agreements with employees.

But, there is another option.

Consider a jury-trial waiver. That is, as a condition of employment, you may be able to require an individual to waive the right to have a jury decide employment-related claims. Instead, a judge would decide such matters.

Now, as with arbitration agreements, some states may not allow this. For example, when New Jersey amended its Law Against Discrimination (LAD) earlier this year, it included new language which reads, “It shall be an unlawful employment practice to require employees or prospective employees to … waive any of the protections provided by the [LAD]” The LAD provides an employee the right to a jury trial. So, requiring a bench trial would seem to violate the statute.

But, in other states and localities, a bench trial strike the right balance of providing employees access to courts, while reducing the risk associated with an overly-sympathetic jury.

Of course, the best approach involves some of the other changes Google is implementing; i.e., more training, transparency, diversity, inclusion, and accountability.

And now for a super-HUGE announcement!

Actually, you’ll have to come back tomorrow for that.