Note: This post has been updated with an addendum.
I’m still planning on doing a #MeToo series on this blog this week (and next week, and maybe the week after…), but before that starts, I had to quickly write something about a bit of news that broke over the weekend, which is that the law firm Munger Tolles & Olson LLP apparently is requiring its summer associates to sign an agreement to arbitrate a host of claims, including those related to sexual harassment and sex discrimination.
The leaked agreement requires associates to arbitrate all employment-related claims, including those that arise under Title VII of the Civil Rights Act (the law that prohibits discrimination on the basis of sex, including sexual harassment). The agreement also contains a confidentiality provision that purports to prohibit signatories from disclosing the “fact or content of” the arbitration proceeding, which includes, at a minimum, the evidence in the proceeding, and the existence of the proceeding. (Does Munger really think that its associates are at a high risk of being sexually harassed, or that it can't possibly prevent them from being sexually harassed?)
Some of the discussions about #MeToo have already flagged how arbitration agreements can blunt efforts to remedy or even uncover sexual harassment. (See, for example, these Wall Street Journal articles, or these Economist articles.)
In brief: Arbitration proceedings, particularly confidential ones, can deter women from reporting harassment because some women will choose not to report harassment if they are the only one to do so, but they would elect to report harassment if other women also reported harassment by the same person, or at the same company. Arbitration proceedings impede women in that position from reporting harassment because arbitration proceedings don’t generate searchable cases or public records that would allow a woman (or women) to find potential corroboration by searching for other cases against the company (or firm, as the case may be). Depending on how the agreement is interpreted, however, it could still permit the victim to speak about the underlying conduct, just not the existence or content of the proceeding.
The confidentiality provision in the arbitration agreement makes the agreement more insidious for two reasons. First, the confidentiality provision removes a (minimal) protection against retaliation for reporting harassment. If it is publicly known that a woman reported harassment, then any subsequent adverse employment action (demotions, withheld promotions, less favorable assignments, isolation) that she experiences is more difficult for her employer and her colleagues to sweep under the rug. If no one knows she reported harassment, there is no reason to suspect that any subsequent adverse employment action is retaliation for her doing so. If her colleagues (and clients, or peers) know she reported harassment, they may raise concerns and ask questions if she soon after disappears from work.
Second, the confidentiality provision undermines what is, to date, a uniquely effective remedy for (some) women who experience mistreatment in the workplace—naming and shaming. The #MeToo moment has created a space in which credible accusations of harassment are, for once, held against the harasser, rather than the person reporting harassment. But that's only the case when those accusations are made public. That doesn’t mean naming and shaming is always the right call for everyone in every situation; it is not. But naming and shaming makes it harder for an employer to do nothing in the face of a credible allegation of harassment, and the wording of the arbitration agreement may chill some junior lawyers from speaking out about mistreatment.
Indeed, the fallout from the Munger arbitration agreement underscores why #MeToo is still needed. Even in the midst of #MeToo, Munger thought it was perfectly acceptable to make its summer associates sign agreements to confidentially arbitrate sexual harassment claims. (The agreements are still legal under current law.) My colleague Rick Hasen predicted that Munger's arbitration agreement wouldn’t last the week, and I think he’s probably right. But the only reason that’s so is because the agreement became public, and because people then jumped on the bandwagon of shaming Munger, including calling on schools to prohibit Munger from recruiting on campus so long as it retains these agreements.
That just proves an uncomfortable fact about #MeToo: No one, and I mean no one, thinks that the best system, or even a good system, for sorting through harassment claims is to air every accusation publicly. The sad fact, however, is that it still remains the safest option for many women: Reporting publicly is still the best way to minimize the potential of retaliation against you, and to maximize the chance that the report is taken seriously. If Munger is shamed out of using the arbitration agreement, that’s great. The point is, however, they shouldn’t have to be. And yet….
Addendum/Update: On Sunday, Munger Tolles announced that it will no "longer require any employees, including summer associates, to sign any mandatory arbitration agreements."