The New York Times today published a piece about Ardith Lindsey, a Citigroup executive suing the bank for sexual harassment. The case is notable, in part, because up until recently, Lindsey's lawsuit would not have been possible.
A harmful practice
As recently as 2022, most large American employers required that sexual harassment claims be managed via a closed, corporate process. An arbitration firm hired by the employer would typically decide the outcome. Results were binding. Employees rarely won and were prohibited from speaking publicly about their claims.
To paraphrase the journalist Max Ableson, the process was a machine of silence, one that shielded serial harassers and employers from scrutiny.
In 2018, the Economic Policy Institute reported that use of forced arbitration by employers had more than doubled since the early 2000s. Over 60 million Americans were bound by it.
In 2017, attempts were made in Congress to ban the practice, but failed.
Me Too prompts change
On November 1, 2018, just one year after the first major report of movie producer Harvey Weinstein's sexual misconduct, over 20,000 Google workers participated in a mass global walkout to protest the company’s handling of sexual harassment allegations against a senior Google executive.
The walkout was sparked by a New York Times investigation that revealed a top Google executive had been paid $90 million after the company learned of a credible allegation of sexual assault against him.
Within a week of the worker walkout, Google announced it would no longer require employees to use private arbitration for their sexual misconduct claims. In the weeks that followed, several large tech companies said they'd end the practice as well including Facebook, Lyft, Square, Airbnb, eBay, and Uber.
Keeping momentum, forcing the issue
In September 2019, the Force the Issue project launched with the goal of getting more companies—particularly those outside of the tech industry—to end the practice of requiring arbitration for sexual harassment claims. It was co-led by the Grab Your Wallet Alliance and featured an extensive public database of the companies still requiring it.
Over the next two years, Force the Issue reached out to thousands of companies to ask whether or not they required arbitration for sexual harassment claims. Over 350 companies including Verizon, Adidas, BlackRock, Abbott Labs, Campbell Soup, UPS, and American Airlines replied that they either no longer required arbitration for such claims or had never required it.
Prior to that outreach, only a handful of companies were on the record about their policies.
In 2020 the Washington Post broke the news that MGM Resorts had dropped the practice after being contacted by Force the Issue. The same month, Wells Fargo announced it had dropped the practice in a press release. In 2021, Dell Computers changed its practice after being contacted by Force the Issue. The Biden administration's Gender Policy Council requested to see the project's data.
Around the same time, various other initiatives created significant momentum in the fight against required arbitration. Some of the most notable and impactful work was done by public policy strategist Ifeoma Ozoma, impact investors Meredith Benton and Kristen Hull, Wall Street whistleblower Lee Stowell, and People's Parity Project founder Molly Coleman. Journalist Max Ableson doggedly reported on the issue.
An important but imperfect victory
In early 2022, Congress passed The Ending Forced Arbitration Act with bipartisan support, effectively ending the practice nationally. Suddenly, employees like Ardith Lindsey could take their sexual harassment cases to court.
Unlike the sexual harassment claims that were once managed in closed, corporate settings, lawsuits like this one have the potential to create larger cultural shifts across the financial services industry—a sector that remains notoriously hostile to women and resistant to change.
Even with such lawsuits now possible, however, there's still significant work to be done on the issue of forced arbitration. In most states, companies remain able to use this practice on a wide variety of claims including those involving workplace racism, ageism, ableism, and other common forms of discrimination.
In 2021, California passed the Silenced No More Act, an expansion of its forced arbitration ban that prevents California-based employers from using this practice for most discrimination claims, not just sexual harassment. (Grab Your Wallet formally supported that legislation.)
Until a similar expansion takes place at a national level, the existing federal ban will primarily help only a narrow group of women, mostly privileged and white. This is because intersectional harassment is common, meaning that workplace harassment often operates on multiple levels, incorporating more than one form of discrimination. Employees who experience this phenomenon currently cannot seek justice for the full range of their experiences in a court of law.
Harassers don’t stick to one area. Their victims shouldn’t have to either.
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If you'd like to encourage Citigroup to create a better, safer workplace culture for women and other traditionally marginalized groups, you can send an email Citi's head of communications, Kara Findlay, at email@example.com.
Sample of what to say: "Hi, Ms. Findlay. I'm writing to you after reading about Ardith Lindsey's lawsuit against Citi for sexual harassment. I'd like to encourage Citi to create a workplace culture that is safe and supportive for women. Also, if Citi is still using the harmful practice of forced arbitration for other kinds of claims such as those based on race, age, ability, sexual orientation, and other common forms of discrimination, I'd also like to encourage Citi to stop doing so. Thank you."
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Large corporations often require that consumers use arbitration to resolve disputes as well. Read this overview by the Economic Policy Institute to learn more.
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