As more women come forward to discuss how they’ve been sexuallly harassed in the workplace, many have also had to answer the question, “Why not say something sooner?”
The answer is complex, of course, and tied to deeply entrenched cultural rules. But there are more prosaic reasons, such as corporations deploying legal devices to shroud sexual harassment cases in secrecy. Companies can include arbitration clauses in employment contracts that forbid women from taking an employer to a jury trial, or often, from publicly discussing a sexual harassment or gender discrimination case. Such clauses also prevent women from banding together to bring a class-action suit against an employer, or even discussing what may be happening to several victims at once.
Now, Microsoft has announced that it will do away with such clauses in its employment contracts. As the New York Times reported today, this very likely makes the tech giant the most prominent company to take this stand.
“The silencing of people’s voices has clearly had an impact in perpetuating sexual harassment,” Brad Smith, Microsoft’s president and chief legal officer, said in a phone interview with the New York Times. “What this legislation does is ensure that peoples’ voices can always be heard by going to court, if that’s what it takes for those voices to be heard.”
In practice, the change will only be relevant to a small number of Microsoft’s 125,000 employees, the paper also reports, and it does not affect arbitration clauses that cover other types of discrimination complaints. Notably, Microsoft, like other tech companies, is facing claims of gender discrimination, and has faced harsh criticism for the way it handled and kept under wraps a sexual assault charge brought by an intern at the firm three years ago. It’s not clear if the new policy will be applied worldwide, or just in the US.
Nevertheless, it’s an important symbolic move. Earlier this month, a bipartisan group of lawmakers proposed a new bill that would prevent companies from enacting sexual harassment and assault-related arbitration clauses. Republican senator Lindsey Graham, of South Carolina, one of the co-sponsors of the bill, pressed Microsoft to change its policy, Smith told the New York Times.
Employers have typically benefitted from these pieces of fine print: The bulk of arbitration rulings come down in favor of the employer, and employees are often not allowed to discuss the case even when they win. They are “a harasser’s best friend,” said journalist Gretchen Carlson, who successfully brought a complaint against the late CEO of Fox News, Roger Ailes, in a statement about the new bill. The clauses have also allowed predators to continue breaking the law, and go unpunished for years, ultimately putting the company at greater risk, says New York senator Kirsten Gillibrand, a Democrat who co-sponsored the bill.
In the US, 54% of non-unionized private sector American workers are bound by forced arbitration clauses, according to the Economic Policy Institute. That number rises to 65% in companies larger than 1,000 people.
The announcement from Microsoft may signal the beginning of a movement to drastically reduce that figure.