1. End Forced Arbitration
This is the single most important thing
a company can do to prove to its employees
that it is dedicated to acting ethically,
legally, responsibly, and transparently.
Microsoft's change of policy makes sense when you consider that NDA's are losing their effectiveness in cases of sexual abuse:
Some states already have laws restricting
confidentiality agreements that conceal "public
hazards," such as product defects or environmental
contamination.
The same reasoning could potentially be used to
invalidate non-disclosure agreements covering
allegations of sexual misconduct, lawyers say,
on the theory that some harassers could pose danger
to others if their conduct is not revealed.
Binding arbitration and confidentiality agreements are two totally different things, that seem to be getting conflated here. There is a defensible argument for not allowing mandatory binding arbitration for certain things.
But eliminating the ability of parties to agree to a confidential settlement is a huge mistake.
It will result in victims getting less money. An allegation of harassment, without further evidence, is not going to fare well in court. Yet the accused might be willing to pay a settlement to put the matter to rest and avoid negative publicity. By prohibiting them from getting confidentiality in exchange for payment, you have removed their largest incentive to pay the accuser. Further, a publicized settlement will be taken as an admission of guilt, which is a further incentive to go to court.
And those accused, who may be innocent, are protected as well. They can avoid having their name smeared in the media, where they stand no chance of getting a fair hearing in the current climate.
Accusers getting more money isn't good for the public. Incentive to settle without a fair trial in something as serious as sexual assault is not only not good for the public, it's bad for the public. Due process exists for a damn good reason.
Preventing sexual assaults is good for the public, publicizing cases of sexual assaults may well have a tendency to do that.
Based on your arguments above, I would come to the conclusion that NDAs on this should be banned. But I haven't thought enough about the topic to conclude that there aren't successful counter arguments.
I would argue that the recent wave of "guilty until proven innocent" and "guilty when accused, and more guilty if accused by more people" is even worse for public policy. Due process does indeed exist for a good reason, one of which is to prevent a situation where mere accusations have the power to destroy lives.
Does this mean I think any or all of the recent high-profile cases are innocent? Oh shit, wait, it doesn't matter what I think unless I'm on a jury or in a position to hire or fire the person who is accused.
It's easy to feel smugly righteous about a lot of these cases, but the reality is that it does matter if innocent people are caught up in the hysteria. I'm not quite sure when the media collectively decided that it was a good idea to promote abandoning the principle of "innocent until proven guilty," but the long-term consequences of this are likely to play out in very unexpected and ugly ways that will affect most or all of us in areas that have nothing to do with sexual harassment.
Talk of “innocent until proven guilty” is misplaced. In a workplace context, you’re not judging guilt and innocence. You’re resolving a civil dispute, where nobody’s freedom is at stake, only property. Even in courts the standard used for civil disputes isn’t “guilt beyond a reasonable doubt” but a mere “more likely than not” conclusion. I’m a civil litigator. We never talk about “innocent until proven guilty.”
Imagine you’re in a dispute with someone over where your property line is drawn. If someone presents an affidavit attesting to facts that show the property line is actually five feet into what you thought was your yard, and you have no facts to the contrary, guess what: you’re losing summary judgment. Civil standards give the defendant a very thin benefit of the doubt. Your accuser’s story just has to be a hair more believable than the other person’s alibi.
Workplace harassment cases are emphatically not like criminal cases. A false negative (acquiting a guilty person) usually has no direct negative effect in most criminal cases. A murder victim doesn’t much care if the state incorrectly acquits her murderer. Workplace harassment is more like the land boundary case. Somebody gets the land; a false negative means one party has been wrongly deprived of her land while the other party had received an undeserved windfall. In a workplace, likewise, an accuser who is telling the truth but is not believed is wrongfully forced to either continue working with her harasser, or to give up valuable career opportunities. A false negative (failing to believe a truthful accuser), is pretty much as bad as a false positive.
Courts do have stricter standards for admission of evidence and verdicts. But the basic innocent-by-default is a general principle that should apply pretty much everywhere.
And there should be consistency and standards in media reporting of allegations, and for HR decisions.
Innocent until proven guilty (“the one who asserts must prove”) applies in courts because it is a fair standard — it’s not a standard limited to courts.
When we are in the position of having to determine if someone did something wrong, and what to do about it, we are faced with the problem of determining what is just and administering justice. The same basic rules apply to us, because we have the same basic problem: not allowing the tribunal or committee or even the court of public opinion to become another source of injustice.
> Due process does indeed exist for a good reason, one of which is to prevent a situation where mere accusations have the power to destroy lives.
No, that's untrue. Innocent until proven guilty is only about the state's power to impose punishment. Innocent until proven guilty is used for even the most mild criminal offences where long term repercussions are unlikely.
A person's life can be destroyed in a civil trial where balance of probabilities, not beyond all reasonable doubt, is used. See all the parents who've been prevented from contact with their children because courts used balance of probabilities.
I think these comments are exaggerated and misrepresent the situation, and no basis in fact is provided:
> the recent wave of "guilty until proven innocent" ...
> the media collectively decided that it was a good idea to promote abandoning the principle of "innocent until proven guilty,"
The stories I've read have done a good and careful job of corroborating and verifying their stories. Those that don't are subject to massive libel lawsuits like the one that shut down Gawker.
> smugly righteous
> hysteria
This is name-calling, which doesn't add to the discussion, and it's against nobody in particular, which makes it meaningless. Who, by name, is smugly righteous or hysterical? And do those people affect us? Are they representative or influential somehow?
> The stories I've read have done a good and careful job of corroborating and verifying their stories.
There are several good recent examples of this:
- the project veritas employee trying to shop a false abortion story to the post
- the schumer accusation that was shown to be falsified
- weinstein's fake accuser that was planted by his own team to discredit investigations
When people come with false information, it gets found and reported on, because journalists do their due dilligence. News organizations are really careful about this kind of thing, because screwing up here is a really good way to get your entire org badly burned.
At the same time, having the victim's name plastered all over everywhere can't be good for them. Despite all the progress that's been made, we still live in a time where most victims would be blacklisted from the industry, despite nothing being their fault.
I think the reticence of victims of sexual assault being identified has more to do with the taboos around sex that still exist, at least in this country. The cult-of-virginity and inequitable attitudes toward sex that come largely from the Abrahamic religions. I think we'll eventually outgrow that.
>It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature... Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
You're right, I wrote the wrong thing, they are substantially different things and shouldn't be confused.
It changes absolutely nothing about what I intended to say, sexual harassment is serious, it still goes through the court system, due process still applies, preventing it is good for the public.
This makes no sense to me. Especially if it's false? If I'm correctly accused, I hope I get what I deserve! This feels like saying, "I bet you'll change your mind about manslaughter laws when if/when you accidentally run someone over with your car." No, I'm pretty sure I'll be preoccupied by feeling terrible for killing someone.
And I understand that false accusations happen occasionally, and I am willing to take that risk because a world that insists on zero false positives has a ton of false negatives. It would be hypocritical for me to not accept the consequences if it happens to affect me - I am not advocating for others anything I could not accept for myself. But I can absolutely accept that if I am a visible leader of an organization, or a manager of people, or in some other role of trust, and I am accused of something I believe I didn't do, the best thing for me to do for the organization is to step aside. (It is not like I can guarantee that I will even live to see tomorrow, so anything that I care about, I should arrange so that my personal involvement is not critical.)
But more than that, it's entirely possible (though I have zero reason to expect it to happen) that some behavior I thought was reasonable will be seen by the world as unreasonable. And if that happens, I am happy to accept the consequences. My goal is making the world a better place, not making myself powerful/comfortable at the expense of other people. If removing myself from positions of trust to prevent my behavior from hurting the world is the right thing for me to do, why should I shrink away from it?
except we designed the justice system so that it's better to let 10 guilty people go than let 1 innocent person suffer
the rest of your comment just sounds ridiculous, hurting the world? im sure you realize not everyone else has the same attitude and arent going to throw away their livelihood because of a false accusation. that's not moral high ground, its just pathetic
It's a mutually beneficial trade. The accuser gets paid, without having to go through the rigors of a trial, where the defense counsel will impeach their character and try to convince the world that they are scheming liars or worse. The accused gets silence, instead of having their name run through the press and assumed guilty by the angry mob.
Also, where did sexual assault come into this? Sexual assault is a crime. Sexual harassment isn't a crime at all; it's a civil wrong that exists only in the context of the workplace.
It may be beneficial to each party but it sure as hell isn't what I want from my society.
A large portion of these events have come from men with money and power. Letting them pay their way out of this just means they get to go on perpetrating the same crime on other people. That's not an acceptable outcome for sexual harassment.
Less money for victims is a GOOD thing. One of Bill O'Reilly's victims got $32 million for a confidential settlement, which teed up the next victim as a near-certainty.
I don't think parent poster is saying that it should. Instead, I think they're saying "without confidentiality clauses, high-profile targets are less likely to pay hush money to smooth over false accusations, leading to a reduction in false accusations."
Very happy to see a major tech company that puts their money (and policy) where their mouth is, on such an important issue — even when it goes against the “legally safest” status quo that companies tend to take.
Other tech companies and tech culture in general should take note, and follow suit if they actually care about this issue. Executives and HR statements are nice to hear I suppose, but even better is actual change.
To the little people like us, take note from a different perspective: Watch for which companies are all talk and no action. Take action through which you choose to work for. If you don’t have a choice, do your best within a company to promote positive cultural change.
I'm honestly amazed that these clauses are legal in the US.
There are certain rights which now cannot renounce in many countries -- the right to sue someone [in court] for sexual harassment is one of them (or any criminal activity really).
These "Forced Arbitration" sound really odd TBH. I understand that businesses might want to settle things behind closed doors, but this sort of things sound like too much.
Companies don't do anything just because it's the right thing to do. Putting out a fire? Trying to kill a lawsuit? Perhaps the good ol' economical incentive?
What have made Microsoft to lift a finger? And which finger?
Companies are not monolithic entities, they're made up of people. If you truly believe that companies never do something because it's the right thing to do, then you can't honestly believe that people ever do something because it's the right thing to do.
I don't see any direct economic or legal upside for MS doing this. However they've now got a very positive NYT article on it and the associated positive PR, so there's certainly some economic benefit in the long term, even if it's impossible to measure.
It's probably just not Satya Nadella, but ever since he took the reigns at MS, things have gotten better and better. Of course I may have missed something.
Bill has some characteristics that hurt being a CEO but he had many that helped, Ballmer lacked most of those. Bill was confident in his authority so he was comfortable with people challenging him, and was willing to give his ego a rest in order to see the bigger picture or make the right decision for the company. Things that Ballmer couldn't do. Ballmer purged the top tier of MS of talented leadership because he saw it as a threat. Ballmer chased after companies in completely different industries (google, apple) because he couldn't stand Microsoft not being top dog in every tech niche, and nearly tanked the company doing so.
Good but only up to a point it will just mean better compromise agreements and more $$ for lawyers.
Most people with these sort of harassment cases will prefer to settle out of court as the process can be brutal - only very brave and often wealthy people will do this.
This is from direct experience as I have counselled people in cases of bullying.
"Mr. Smith of Microsoft said he first became aware of the Senate bill after meeting with Mr. Graham in Washington to discuss cybersecurity and immigration. Mr. Graham urged Microsoft to support the bill, Mr. Smith said."
Urged is likely a euphemism. There was probably a quid pro quo.
https://www.susanjfowler.com/blog/2017/5/20/five-things-tech...
Microsoft's change of policy makes sense when you consider that NDA's are losing their effectiveness in cases of sexual abuse:https://www.reuters.com/article/us-usa-misconduct-agreements...