November 15, 2018

Facebook, Google, Airbnb and eBay are part of the wave of tech companies making moves to end arbitration—drawing praise from plaintiffs lawyers who simultaneously are asking: Why stop there?

Singling out sexual harassment raises questions for some plaintiffs attorneys, particularly if these companies acknowledge the need to give employees the choice in those specific instances. The new policies do not extend, for example, to gender equality in pay and promotion disputes or harassment for other protected classes, including race, religion or national origin.

Airbnb is among the exception here. The company said it was ending employment practices that required workers to arbitrate both harassment and discrimination claims.

Joe Sellers, a Cohen Milstein Sellers & Toll partner, said technology companies—competing for employees—are trying to capitalize on the #MeToo movement.

“The perception that they want to be more transparent with sexual harassment resonates with people who they would like to retain or attract to the workplace,” Sellers told me. “The decision to exempt sexual harassment claims from binding arbitration is revealing in another respect. The proponents of arbitration have argued that arbitration is the best way to resolve every workplace dispute. If it were that good, you wouldn’t think they would be offering this to appeal to their workers. The reality is different.”

Sellers said he applauded the moves by companies to restrict mandatory arbitration “but I don’t see a legitimate basis to draw the line there.” He continued: “Exempting all workplace claims from arbitration would make more sense. Otherwise, it seems they are taking advantage of a popular movement, hoping that it would have some symbolic effect that will resonate.”