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Microsoft’s Choice to End Forced Arbitration in Sexual Harassment Cases May Not Be Enough

— January 2, 2018

Lawmakers are calling on Microsoft to ban private arbitration in all cases related to discrimination.

Last week, company officials announced they’d no longer use private arbitration to settle claims of sexual harassment and gender discrimination. But for some politicians, the move to reform isn’t enough.

Members of the Congressional Black Caucus wrote to Microsoft, asking that the software behemoth extend its ban to cases of racial discrimination, too. They also asked for private arbitration to be taken off the table in instances of other varieties of workplace harassment, including gender identification and expression, sexual orientation, and religion.

“While we commend Microsoft for steps it has taken to prevent workplace discrimination, more can be done,” wrote Reps. Robin Kelly (D-IL), Bonnie Watson Coleman (D-NJ), and Emanuel Cleaver (D-MO) to Microsoft CEO Satya Nadella. Editor’s note: this story has been corrected to reflect that Rep. Cleaver represents Missouri, not Massachusetts. We apologize for the error.

Microsoft, according to USA Today, didn’t respond to any request for comment.

The publication estimates that some 60 million Americans are forced to waive their right to take to their courts in favor of arbitration as a condition of employment. Critics say such clauses, which require workplace disputes to be settled behind closed doors, enable predators and contribute to hostile environment.

A host of lawmakers and entertainment figures – ranging from Bill Cosby to Harvey Weinstein – purportedly abused confidential settlements to harass employees for decades on end.

Microsoft, which USA Today says is battling a gender discrimination lawsuit, claims that fewer than 1% of its 250,000 employees have arbitration agreements included in the terms of their employment. But, while the company is waving those clauses in cases of sexual harassment and gender discrimination, it could still require private arbitration for other forms of prejudice.

San Francisco civil rights and employment attorney Cliff Palefsky says that’s a case of “discriminating between discrimination claims.”

“Microsoft deserves a lot of credit for taking this stand in support of the civil rights laws. But there really is no principled reason to distinguish sex discrimination cases from other forms of illegal discrimination and harassment,” said Palefsky, a longtime critic of forced arbitration. “Race discrimination, age discrimination and disability claims are entitled to equal dignity.”

Microsoft’s president and chief legal officer, Brad Smith, announced that the company would support legislation limiting or outlawing arbitration clauses in employment contracts.

“Even as we look squarely at the sins of the past, we must take stronger steps to prevent these problems in the future,” Smith wrote.

“Because the silencing of voices has helped perpetuate sexual harassment, the country should guarantee that people can go to court to ensure these concerns can always be heard.”


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Microsoft should ban private arbitration in racial discrimination cases, too: lawmakers

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