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Tech’s New Harassment Policies Are Too Late for Some Women

Nov 20, 2018 / Media Coverage / Wired — Nitasha Tiku

In recent weeks, at least five big tech companies have revised their policies for handling sexual-harassment complaints, saying they will no longer force employees to submit those claims to arbitration, a process that tends to favor employers.

But many of the new policies come with hitches: They may apply only to claims of harassment and assault, and not claims of discrimination, retribution, and hostile work environment that often accompany harassment. And the policies typically don’t apply to past cases of harassment.

The case of Loretta Lee, a former Google engineer who filed a lawsuit against Google in February, highlights the distinctions. In her suit, Lee alleges that she faced daily harassment from male coworkers during her seven-year tenure. Lee also claimed gender discrimination, hostile work environment, retaliation, interference, and wrongful termination.

Even under Google’s new policy, announced a week after 20,000 Google employees walked out of work to protest the company’s handling of harassment cases, Lee would have been required to go to arbitration, rather than pursue a lawsuit, where claims can be resolved in public, often before a jury. Tuesday, after a bout of publicity about Lee’s case, Google said it would relax its policy and allow her to take the harassment case to federal court because the arbitration process had not officially begun. But the company said Lee’s other claims must still be handled in arbitration.     

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Google says it tweaked its policy to permit lawsuits involving any harassment claim that has not already started arbitration, including Lee’s, because it wanted to do the right thing.

Similarly, Uber in May said it would no longer force employees to take sexual harassment claims to arbitration. But the company was still fighting in federal court to keep 485 current and employees, all women and people of color, including former engineer Susan Fowler, from pursuing a gender discrimination and harassment case in federal court filed by two Latina engineers, Roxana del Toro Lopez and Ana Medina. Before the court was scheduled to rule on a motion to compel arbitration, the case settled. Last week, the judge approved a $10 million settlement.

A lawyer for the employees, Jahan Sagafi, a partner at Outten & Golden, says his clients might have had leverage for a larger settlement if the specter of forced arbitration had not been hanging over the case. “If Uber had not had the option to compel arbitration, we would have had a stronger case and it would be very reasonable to expect that we could have gotten more money,” says Sagafi. “For every [individual] assault and episode of harassment,” there may be many more instances of systemic bias. Uber did not immediately respond to comment about the settlement, but previously directed WIRED to its May announcement.

Together these cases show that the tech companies are updating their policies in a piecemeal fashion, in response to public scrutiny, much like the harassment policies for content on their platforms. And changes often arrive too late for women, often women of color, who first drew attention to the alleged abuse.

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