[tptacek]

How are employment contracts for 6-figure jobs "under duress"? KPCB isn't obliged to hire anyone. It seems entirely reasonable that they should be able to choose their own terms, and, similarly, if employee candidates don't like those terms, they don't take the job.

What you've done here is subtly shifted the frame of the discussion. You make it sound like if she didn't sign the contract, she'd be fired. That's not at all what happened, is it?. As a prospective hire at one of the most "prestigious" VC firms in the country, this person no doubt had many options for where to work next. Kleiner extended her an offer and with it an employment contract, right? If she didn't think she could keep the promises in that contract, she should have gone somewhere else.

I'm also not sure what their being a "VC firm" has to do with who pays legal fees. The rules aren't different for "rich" firms and "poor" firms. People make frivolous claims to both kinds of companies, and larger companies shouldn't have to shoulder the legal costs of fending off bogus claims simply because they're larger. Obviously, if KPCB is wrong about what happened, it's they who will be paying the legal fees. What matters is who's right and who's wrong, not which side of the conflict is easier to caricature.

I have no opinion about the sexual harassment charge itself, nor do I think that "non-disparagement" clauses should (or even can) prevent someone from litigating a sexual harassment or discrimination charge, or even from making a case to the public about them. No doubt KPCB's lawyers want that clause to shut down the drama, but there's a public interest issue involved in firms forcing employees out due to sexual discrimination or harassment.

The reality here is probably that you don't know anything about what happened with Ellen Pao and Kleiner Perkins, but that this is a message board and so you feel it's appropriate to litigate the issue with cartoons. I wish you'd not do that. It makes us all dumber.

Late edit: 5 minutes of Google research suggests that non-disparagement clauses are not enforceable in matters of discrimination and, broadly, in public interest cases of all stripes; similarly (you may have already known this), where non-compete agreements are valid, they are still not enforceable when they directly harm the public interest.

[rayiner]

The problem is what happens when all employers follow suit with this arbitration garbage and it becomes standard practice, which it is becoming. Employers have all the leverage in these cases.

[jcampbell1]

What is the problem with arbitration? If I were Ms Pao, I wouldn't want a jury trial. Jurors hate people who they think are looking for a handout.

Here is how it is going to play out: "KPCB is an investment fund, meaning we take money from groups such as a teacher's union retirement fund, and invest it in companies. The returns from those investments are paid back to the investor, ultimately helping secure the retirements of teachers. We pay our employees exceptionally well, because the stakes are so high. Small investment decisions can impact the bottom line of the fund by many millions of dollars".

Juror thinks: "I am not going to take from school teachers to pay Ms Pao because her feelings were hurt. I am sorry some guy harassed her, but that doesn't mean she wins the lottery. Hell, I'd let my boss kick me in groin every day if it meant I got her salary.".

Jury trials are a bad idea when the jury can't relate to the victim. Getting a fair jury is almost impossible in a sexual harassment case.

[rprasad]

>What is the problem with arbitration?

The problem is that the company pays for the arbitor, who is usually an independent contractor hired on a per-arbitration basis. The arbitor is ecnomically pressured to side with the company, because siding against the company is likely not to result in repeat business. This effect is well-established and has been documented (I'll come back and post a reply with sources if I have the time).

Jury trials are a bad idea when the jury can't relate to the victim. Getting a fair jury is almost impossible in a sexual harassment case.

Getting a fair jury is not only possible, it's almost impossible not to get a fair jury for a civil trial. Sexual mores and attitudes have changed significantly over the past several decades, to the point where sexual harassment is no longer perceived as acceptable in the general workplace by either gender.

Note that in male-centric fields (sports, programming, etc.) attitudes toward sexual harassment have not changed as much as they have in more gender-balanced fields. This skewed perspective on sexual harassment has made more than a few plaintiff's lawyers quite wealthy.

[larrys]

"The arbitor is ecnomically pressured to side with the company, because siding against the company is likely not to result in repeat business."

Arbitrators are typically agreed upon by attorney's of both sides or specified by a neutral higher authority (judge etc.)

[ta12121]

Perhaps, but that does not disprove the quoted claim.

[tptacek]

Can companies reliably avoid discrimination lawsuits with binding arbitration clauses in employment contracts?

[larrys]

"How are employment contracts for 6-figure jobs "under duress"? KPCB isn't obliged to hire anyone."

In "entitledville" they are duress.

[michaelochurch]

How are employment contracts for 6-figure jobs "under duress"?

Those non-standard terms (non-disparagement, arbitration only) are almost always presented after the person has gone through the interview process, accepted an offer, and given notice at the previous employer. If the companies put those policies on their websites for the public to find, then it wouldn't be under duress. Companies with onerous employment terms would be known to have them before people spent time on an interview.