Mandatory Arbitration and the #MeToo Movement

Diane Burton: 0:14

Work is all around us. It defines us and the future of work impacts nearly every person on our planet. The ILR school at Cornell university is at the center of work, labor and employment, influencing policy and practice on the most pressing issues facing employees and employers. In this episode, Dean Colvin and litigator Douglas Wigdor discuss the impact of the Me Too movement on sexual harassment in the workplace.

Alex Colvin: 0:47

Well, thanks very much for joining us today. This is a chance to reflect back on something that I was just realizing is more recent than I think we often think. So this is about two years since the Me Too movement kicked off and I was just hearing that stat and it feels like it's been much, much longer. This has been something that's become such a big part of our culture and how people think about issues around sexual harassment in the workplace. So just to kinda kick things off I'd be really interested in your take, you know, somebody who's really represented, a lot of clients in major Me Too type disputes. You know, thinking about what has been the impact of this movement in, you know, two short years.

Doug Wigdor: 1:37

Well, Alex, thank you for having me, first of all. And I think that you're correct that the Me Too movement as we know, it started in 2017 when Alyssa Milano, who has been credited with popularizing the Me Too slogan, but, and she did that to encourage people to come forward and say, Me Too, if they had experienced sexual harassment or assault to give a sense of the magnitude of the problem. But I think in order to look at where we are now, we really need to go way back because this has been a steady slow movement that goes back really to the creation of sexual harassment laws. Believe it or not, that that started to come about in the 1970s when women were entering the workforce and sexual harassment was just starting to come about. And the law was starting to change. Of course, you know, you had the very popular cases of William Kennedy Smith, Anita Hill, Monica Lewinsky. And to fast forward, actually the Me Too slogan actually wasn't Alyssa Milano. It was actually a woman by the name of Tarana Burke who came up with that slogan back in 2006. And she is and was a civil rights activists, and she began to use this phrase, Me Too, this was before Twitter, but used that slogan to raise the awareness of and pervasiveness of sex abuse and assault in society. And she was really focused on people of color and people in marginalized communities. So it's been a slow, steady process to where we are now. And things have obviously changed since 2017.

Alex Colvin: 3:37

Yeah, I mean, I think, you know, think back to the Clarence Thomas hearings, right, when I was in law school, you know, almost 30 years ago now when it seemed like, you know, this issue was first getting that really big public attention. Maybe that's what the attention to the hashtag Me Too the last couple of years is, is that, you know, increase o f public attention, right? So a refocusing again, right. And we've sort of seen these k ind of, I guess waves of attention to a problem that doesn't seem to go away.

Doug Wigdor: 4:10

Yeah. And it doesn't go away because of a number of different problems in terms of the people's perceptions of people who have been sexually assaulted or people who are survivors. And I think Anita Hill was a good example of this, but there are many other women including, my former client, Nafissatou Diallo, who was raped by Dominique Strauss-Kahn, who was kind of, would've been the next president of France. But the problems tend to be that people unfortunately don't tend to believe the events happen the way someone who comes forward as a survivor says. They often blame victims. They often discount the injury and there's, there's a lack of care. And so those things are changing. Here we are in 2019 we're a few weeks away from the Harvey Weinstein criminal trial that's expected to start in January. And that I think that trial I think would be a really important litmus test to see really where we are. Because as we know Harvey Weinstein's defense is going to be to attack victims and, and to, to, to use the, some of the old generalizations that people used to think were true. For instance, that if a woman came to a man looking for a job and something happened that wasn't necessarily a bad thing and she put herself into position and then if after she was sexually assaulted, she went back to see that person that would undermine her credibility. These are the sorts of things that Harvey Weinstein in January is going to use to try and discredit the victims. And it'll be interesting to see that what happens in 2020, three years after the Me Too movement has really kicked off.

Alex Colvin: 6:07

So you do get exactly that kind of response, where there's sort of an assumption that somehow if the, you know, if you can show the character of the victim, is, is not perfect, right, that undermines the allegation. I mean, you've, you've represented clients subject to these kinds of attacks. I remember the Strauss-Kahn case, we saw some of that. How do you respond that, how do you, how do you kind of get past those kinds of attacks? How do you respond to that?

Doug Wigdor: 6:35

Yeah, I mean, it's really hard and unfortunately there are even some, you know, plaintiff's lawyers we saw, for instance, Lisa Bloom, who is, who had held herself out as a women's right activist. She's the daughter of Gloria Allred. But what we found out was that she was working for Harvey Weinstein in an effort to undermine Rose McGowan and to attack her character and credibility. So this is a problem. And what, I mean, first of all, the, the courts should be the gatekeeper here to prevent these things from happening. There are different federal rules of civil evidence and there are other state rules that prevent these things from happening. But unfortunately in my experience, judges often permit discovery into things that I, I think that they ought not to. And of course there's the dissemination through newspapers and social media of negative things about clients or women who come forward and claim that they've been sexually assaulted. And that that's exactly what Lisa Bloom is going to do with Rose McGowan. And unfortunately, for instance, in the Dominique Strauss-Kahn case, there were the New York Post on the ran a story that she was a prostitute, which was blatantly false, but it was an attempt to undermine her character and her credibility. So we really need to, to, to make sure that these things aren't happening because what they do is they act as a disincentive for people to come forward. If they know that their Facebook and their social media is going to be turned upside down. Every picture there is going to be examined and looked at and the defense lawyers are going to be able to ask them questions about prior partners that they had and, and other other things like that. It's gonna be a real disincentive for people to step forward.

Alex Colvin: 8:32

Yeah, I mean, it's something that seems like there's a process where some of the cases get litigated in, in the PR space, right, through the media. You know, at the same time there's a court case going on. But you know, are there ways in which, you know, the public pressure can be used in a positive way to help b ring the claims. Does that help you sometimes?

Doug Wigdor: 9:00

It does. It helps because in my experience, someone who has committed an act of sexual assault typically hasn't done it just one time. Right? So in my experience, by coming forward, other people will come forward and that obviously is a great asset to have when trying to hold somebody accountable because the, the rules of, of evidence in certain circumstances permit other woman to support the victim. If it shows, for instance, a motive or intent or a modus operandi. In fact, in the Bill Cosby case, that was, that was used and it will be used as well in the Harvey Weinstein case. One of my clients actually is going to t estifying in that trial as, as what we call a Molineux witness, but w ill be, she's not the main victim of the case, but that she had a similar thing happened to her that supports the victims. And so to answer your q uestion specifically, these things are coming out into the public is important because it usually brings out other people.

Alex Colvin: 10:13

Yeah. So one of the things that, you know, is, is a challenge in getting that public attention is an issue both you and I have have, dealt with, which is mandatory arbitration, right? And this is, you know, for our listeners, you know, where the employer requires the employee to sign an agreement to arbitrate any disputes against the company, right. And this is, this is mandatory because you have to sign it if you want the job, right. It's not, there's not a choice there. And the problem you run into, you know, it might sound good in theory, you get something other than the courts and not everybody loves being in the courts, but the reality is this is something set up by the employer, ad when you get in it, it's a private forum so that you don't get to tell anybody in the public about what's been going on. You know, one of the most famous examples of this was with the Fox news, Me Too cases and Gretchen Carlson there who had a public platform through being a journalist, was forced into this private forum where she couldn't talk about her case. Maybe, could you tell us a little about your experience running into mandatory arbitration and how it's affected the cases that you've handled?

Doug Wigdor: 11:32

Yeah, and I was involved in the Roger Ailes and Bill O'Reilly cases as well, and was faced with that identical problem. And, and what Gretchen did, and what many others have done in those circumstances is in an effort to get around it, although legally it's questionable whether it would ultimately prevail, was to sue individuals who they had not entered into an arbitration agreement with rather than sue the company.

Alex Colvin: 12:00

So she sued Roger Ailes personally rather than Fox News.

Doug Wigdor: 12:03

That's right. Yeah. And because she and Roger Ailes had not had a contract that required arbitration, although she and Fox did that, that arguably covered their executives and employees. But this, but this problem, and I'll call it a problem because it, in my view, it's a problem because it, it forces people into a confidential arbitration process before an action arises. So as they start their employment, they're given, as a condition to working at the company, they're told if they don't sign this, then they can't work there. Most people would sign it and not think twice because you don't think they're going to be sexually assaulted in the workplace.

Alex Colvin: 12:49

Yeah. Nobody would take the job if you thought that.

Doug Wigdor: 12:51

Yeah. And then three, four, or five years later, something happens and then all of a sudden, the employer breaks out this agreement that was signed on, on the day of the first day of employment. And the problem is, is that really you're, you're now forcing a decision on a survivor that is really not fair. That decision should be made at the time of filing the lawsuit. And this is not, this is not only true in the employment context and it's also true outside the employment context. For example, I represented over 25 women who were sexually assaulted or raped by Uber drivers and they, they were not employees of Uber. When they signed up for Uber in their terms and conditions that they agree to when they downloaded the app, they agreed like everybody else who got the Uber app, to binding confidential arbitration and some of these arbitrations, believe it or not, were to take place in the Netherlands.

Alex Colvin: 13:57

Right. Conveniently located for everybody taking an Uber in New York city.

Doug Wigdor: 14:01

Exactly. And so what we did is we did an open letter, which basically it was a letter to the board of, of Uber and it was on behalf of our clients and asking them to do away with this mandatory arbitration provision. And to their credit, they, they did that. They've now done away with the mandatory arbitration provision for not only sexual assault cases, but sexual harassment cases as well. And there are other companies that have followed their elite leading views on that, which, which is a good trend.

Alex Colvin: 14:45

Yeah. It's kind of interesting that we've seen certain companies responding this way, right? So Uber, making changes. Google's, the other one that jumps to my mind, right. That, Google was also using mantra arbitration and it turns out that they've had issues of sexual harassment by at least one of their executives. And you don't know if there are more cases, but at least one major executive was forced to resign with a pretty substantial golden parachute, because of sexual harassment issues. And they responded right after the Google employees started walkouts and pressure campaigns. You know, I, I've been kind of interested in looking at these because it seems like there are these cases where the public pressure makes a difference. The Ubers the Googles. I do wonder, you know, how far that that spreads right? Are, is that gonna be effective in a broader set of employers or not? Right? Does it really substitute?

Doug Wigdor: 15:47

Yeah, sadly, I don't think it is going to be a trend. I would hope it would be, but I don't think that will be the case. More times than not, unfortunately. I get a very nasty letter from the company's lawyers threatening both myself and my client, that if they were to do anything public, that they'll, they'll sue for breach of contract and all the damages that would result from public. And, you know, we just actually sent an open letter to DLA Piper, which is one of the largest law firms in the world. You would think that a law firm would try and lead by example and not force arbitration on their, their attorneys who have been sexually harassed or sexually assaulted. But unfortunately, not only have they refused to waive the arbitration provision, they are, they're defending that case in a pre- Me Two textbook manner of attacking the victim.

Alex Colvin: 16:46

Right. You know, one of the things that's, that's striking about this area is that, you know, you do see you do see companies that you think would be, trying to hold themselves out as, as exemplars of good behavior, you know, go on for pretty hard ball tactics. What one of the things that I think is an interesting question that a lot of people wonder is, you know, are there better alternatives? Right? You know, we know that, you know, sometimes the, the courts aren't as friendly to plaintiffs as they might be. You know, you've talked about, you know, the sort of suspicion of the victim. Mandated arbitration, right? Arbitration sounds like a good alternative, but if it's this mandatory structure that's not real helpful. Are there other ways that we could be resolving these conflicts better? Something like mediation, right? Do you find mediation's a useful tool in these cases?

Doug Wigdor: 17:46

Yeah, I think. So mediation, which is a non-binding process where a neutral person tries to facilitate a resolution amongst the parties, is, is definitely something that, that I have used over the years. Many times successfully. I would say though that a mandatory mediation process though is something I would, I don't think is particularly helpful because if somebody is being compelled to mediate, they're usually not going to really go into the process, in good faith. Mediation, you need both sides to be there and want to be there. So mediation is good if both sides want to do it, but if one side doesn't want to do it, then I think it's a waste of time. Right. And so, you know, you're not really in a voluntary situation, right. So the idea that, you know, kind of, ideally you want to have voluntary consensual ways, but you know, that requires two sides to tango if you're going to do that. Yeah. I mean, unfortunately there really is no perfect system. You know, there are definitely pros and cons of arbitration as well as, as, as the court process as well. But I think what I would say is this, is that at the end of the day, the choice, in my view, should be left to the victim after the occurrence of what happened because the person's already been victimized once and to be forced into some sort of dispute resolution system that they don't want to partake in, to me is, is making the, the underlying, violence that happened to them even worse.

Alex Colvin: 19:29

Kind of ties into something that I think has been a tough issue to deal with and that's the question of the role of nondisclosure agreements. Where many times you have settlements of these complaints involve a nondisclosure agreement. So you get the settlement, but you know, you can't then talk about what happened. And that strikes me as a tough issue because then you no longer able to communicate what happened and, and bring attention to, you know, what could be a serial perpetrator. At the same time, you know, you can understand the victim's desire not to have, you know, to want to have privacy themselves and to, to have, you don't have their reputation attacked in the public. You k now, what are your thoughts on, on the nondisclosure agreement problem?

Doug Wigdor: 20:22

It's a really difficult question and situation. I think that Gloria Allred has been unfairly attacked, for example, by Jodi Kantor and Megan Twohey who wrote the book,"She Said," With the Weinstein case, they did a podcast in which they essentially blamed her for entering into confidential settlement agreements. And that's because people didn't know about it. It permitted Harvey Weinstein to continue to do what what he did. But it's not that simple because as you just noted, many of our clients don't want to be, do anything public. And so, you know, th e, of course the co mpany's p aying for confidentiality to some extent, but our client also doesn't want their name out there and not every client, but a lot of clients. And so I think you have to give ultimately the survivor the choice of what they want. But what I would say is this, this is the, this is the one thing where the law really needs to develop is in terms of holding executives, directors and officers liable for the conduct of their senior level people who they know have engaged in unlawful conduct and ha ve s ettled cases in the past. You know, we saw with Harvey Weinstein, his brother Bob Weinstein and the other directors and officers know about his conduct. It's the same thing was true with Bill O'Reilly. Fox knew about his conduct, but unfortunately the way the loss of the law on holding directors and officers liable goes back to the beginning of time. And, and the only way you can hold a director and officer liable for an intentional act of someone like Harvey Weinstein is where the defendant Harvey Weinstein uses, what we call a chattel, usually some sort of equipment from the company or and so basically, unless they use like the company car or they do it on the company property,

Alex Colvin: 22:29

Or the office.

Doug Wigdor: 22:31

Or the office. There's no way of doing it. But of course, what we know is that most of these sexual assaults take place either in hotels or somewhere else. And so it doesn't really address the question is what, which is this is whether it's foreseeable enough. Should, the directors and officers know that this might happen? Is it foreseeable? But unfortunately the courts have not adopted that standard as of now.

Alex Colvin: 22:56

Yeah. I think this does feed a public cynicism about the law in this area. You know, as well as, as the liability talking about, you know, there's also the situations where companies do, you know, get the person to step aside, you know, sort of exit from the company and they walk away with, you know, tens of millions of dollars in some executive contract. You know, which at the same time, if a, you know, regular rank and file employee is terminated, they get nothing, right? There's no just cause, there's no severance. But then you see examples like this Google one where the executive walked away with tens of millions of dollars in a golden parachute. And, you know, I think, you know feeds outrage.

Doug Wigdor: 23:42

Yeah. I mean, we just saw, you know, WeWorks CEO and founder Adam Neumann walk away with hundreds of millions of dollars and I represent his former chief of staff who he marginalized, sidelined because when she came back from her maternity leave and paid her l ess than somebody who was doing the exact same job as she was. And so, you know, with Bill O'Reilly, it was even worse. They renewed his contract knowing that he had engaged in these, these types of conduct and put a provision in his contract where he would have to pay a certain fine if h e did it again in the future. So they actually contemplated that this would happen a gain.

Alex Colvin: 24:31

One of the things I think is significant about the Me Too movement, when we look at the public attitude about the fairness of our system, our economic system and structures of power and our corporations, is that it, it exposes, sort of a lack of accountability in the upper echelons, right? When you see this sort of the Harvey Weinsteins, the Matt Lauers, the, you know, the chief executives who are, you've been getting away with this for a w hile and they don't seem to be genuinely held accountable often. Right. Even if there's you know, successful lawsuit, i t's often the company paying the money. Right. And so, you know, you do get this public frustration.

Doug Wigdor: 25:15

Yeah. I mean, I mean it really it emanates from the lack of senior women in C-suite positions and having, you know, very few women in these companies who are the CEOs or running the companies who, in my view, wouldn't, wouldn't tolerate this conduct and turn a blind eye to it. And, and so we obviously see it now going on with NBC. And then we've seen even, you know, with, the National Enquirer, you know, buying stories and, and, and like stories that would never see the light of day with Karen McDougal like that. So,

Alex Colvin: 25:58

Yeah, burying the story.

Doug Wigdor: 26:00

Yeah. Burying stories, paying off people to bury stories. But that's really, you know, what the Me Too movement is about, and we're not done with it yet, but it really is all about giving people the ability and power, and the confidence t o, to be able to come out and say, I was sexually assaulted, I was raped. Even if that person, who raped them or sexually assaulted them is a powerful person. And some of the stigma, not all of it, and the blame and the discounting, i s now dissipating and we're starting to move in the right direction. But I do believe that th ere's s o much more to be done, especially on the legal front in terms of some of the laws and evidentiary, t hings that, tha t's st ill in my, in my view, m a ke it more difficult, a lot more difficult for, for victims to ultimately prevail.

Alex Colvin: 27:01

Yeah, I mean, I think, yeah, one of the things that we've seen, you know, this problem's been around for a long time. You know, there's been attempts to start addressing it. You know, I think that the, Me Too movement has picked things up in terms of giving prominence and attention to it. But it's really clear that we're going to be dealing with this for a long time to come. This is, this is not something that's, that we're going to have any kind of quick fix and it's going to be a social problem. We need to, we need to keep addressing.

Doug Wigdor: 27:28

Yeah, that's right. But you know what? We're going to have our first female double 007, Lashana Lynch, in the series. So we're making progress.

Alex Colvin: 27:35

We're making some progress. A first female Dr. Who as well for fans of Sci-Fi. So, you know, l et's, let's see what happens. Thanks s o much, Doug. Yeah, real pleasure talking.

Doug Wigdor: 27:43

Yeah, you were great. Very easy to talk to, so I appreciate it.

Diane Burton: 27:49

Thank you for joining us for work, exploring the future of work, labor and employment. In our next episode, Dean Colvin talks with New York State Assemblyman, Sean Ryan about Buffalo's economic revitalization and its impact on work. Again, thank you for listening and learn more about ILR by visiting us on the web at ilr.cornell.edu.