Technology

Microsoft Junks Arbitration Agreements In Show Of Support For #MeToo Movement

Companies use employment agreements to silence sexual harassment victims. Microsoft's decided it's time to change that.

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As the long overdue sexual harassment reckoning sweeps through industry after industry, lawyers have garnered their fair share of scorn for the role they’ve played in silencing victims for years. It turns out that the wealthy and powerful may be monstrous but they’re not stupid, engaging talented attorneys to draft intimidating non-disclosure agreements that keep victims from speaking out about their predicament.

It’s the sort of contract that should violate public policy in any decent society, but as the United States slides gently into Lochner II: Electric Boogaloo, anything goes when it comes to asymmetric bargaining. With the proper resources, men could harass to their heart’s — or whatever part’s — content, secure in knowing that their victims faced a reasonable fear of financial ruin if they ever spoke out.

The equally unpleasant cousin is the mandatory arbitration agreement. Unwilling to be dragged down over misbehaving employees while simultaneously reluctant to vigilantly police conduct, corporations jumped on the lawyering bandwagon, forcing employees to agree to closed-door mediations and arbitrations rather than allow sexual misconduct allegations see the light of day. Cagey lawyers allowed companies to quietly mete out justice in these cases on their own terms, with the focus less on justice than on dispensing with the issue quickly and quietly.

Just another agreement that a more powerful entity can stick on someone with absolutely no leverage.

So kudos to Microsoft for publicly announcing that it will no longer bind its employees to their arbitration clauses when it comes to workplace harassment:

“The easiest mistake any employer can make is to assume that ‘this could never happen here,’” Brad Smith, the company’s chief legal officer, said in a blog post Tuesday. “While it’s natural to hope and believe that’s the case, one of the fundamental lessons of recent months is that people’s voices need to be heard if their problems are to be addressed.”

Smith continued: “As each news story about sexual harassment demonstrates, current approaches in this area have proven insufficient. Even as we look squarely at the sins of the past, we must take stronger steps to prevent these problems in the future.”

It’s worth pointing out that it’s a tech company that opted to take this step. With Google and Uber revealing a tech culture as broken as ever this year, it’s appropriate that a tech giant take the first big step on this issue.

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Hopefully other companies will soon follow Microsoft’s suit. In the meantime, many point to a bipartisan bill to mandate Microsoft’s practice as a potential solution, though a Congress that’s actively considering letting children die rather than disrupt their vacation plans probably is unlikely to bend over backward for harassment victims anytime soon.

So this remains a matter of corporate responsibility. The ball’s in their court.

Microsoft, Nodding to ‘#MeToo,’ Says It Won’t Keep Harassment Victims Out of Court

Earlier: Are Lawyers Perpetuating A Culture Of Silence Surrounding Sexual Assault?

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HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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