In the past three months, I've heard a lot of people talking about what they think tech companies can or should do in order to protect women and minorities and anyone who experiences unlawful treatment like harassment, discrimination, or retaliation. Most of the discussion has centered around promoting diversity and inclusion, which is fantastic and important, but, I believe, slightly misses the point.
Diversity and inclusion efforts are a huge part of making sure that women and minorities are employed by tech companies and are included appropriately within companies, and I'm excited to see how current diversity and inclusion efforts pay off in the next 1-5 years in Silicon Valley. However, diversity and inclusion efforts aren't going to help or protect women and minority employees if they're being silenced or treated unlawfully.
The things that hurt many women and minorities in the tech industry are harassment, discrimination, and retaliation - things that are illegal under state and federal law. When we talk about unlawful behavior like retaliation or discrimination, we are talking about real laws being broken. Protecting employees (especially women and minorities, who are the most vulnerable in the industry) from unlawful and inappropriate behavior is not about diversity, and it is not about inclusion. Framing it as a diversity and inclusion project minimizes the importance and severity of the problems that employees who are treated unlawfully face.
I believe that tech companies should make a commitment to their employees, a commitment that they will act ethically, legally, responsibly, and transparently with regard to harassment, discrimination, retaliation, and other unlawful behavior. In my opinion, this commitment requires five things: ending forced arbitration, ending the practice of buying employees' silence, ending unnecessarily strict confidentiality agreements, instituting helpful harassment and discrimination training, and enforcing zero-tolerance policies toward unlawful and/or inappropriate behavior.
Without further ado, here is a list of those five things, the reasons they're important, and how companies can implement them:
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.
Many tech companies require their employees to agree to forced arbitration. This means that, as a condition of their employment, employees are required to sign away their constitutional right to the public court system. It means that if employees are the victims of harassment, discrimination, retaliation, and unlawful termination, they are not allowed to sue their employers. Instead, they are required to go through the company's predetermined arbitration process, which usually entails the following: (1) they are usually bound to keep completely silent about the unlawful treatment that they experienced at the company and the entire arbitration process, (2) they are not allowed to exercise their constitutional rights to the public court system, (3) the arbitrator is usually chosen by the company.
Forced arbitration deprives employees of their constitutional rights, and it forces employees who have been treated unlawfully to keep silent about what they have experienced. It is entirely in the interests of the company, and not the employee. It prevents harassment, discrimination, retaliation, and other unlawful treatment that employees have experienced from ever becoming public, and in doing so it continues and supports further mistreatment and unlawful behavior.
What companies can do: end forced arbitration, and allow all employees to choose between arbitration (not forced arbitration, which is bad, but optional arbitration, which preserves their constitutional rights) and a public lawsuit.
2. End the Practice of Buying Employees' Silence
Another common - almost universal - practice is buying the silence of an employee who has experienced unlawful treatment by means of a "generous" severance package with an accompanying non-disparagement agreement. The way this often plays out is this: an employee who is harassed, discriminated against, retaliated against, or unlawfully terminated is offered a "generous" severance package of a month's to several months' pay in exchange for a very strict non-disparagement agreement. Non-disparagement agreements only favor companies, never employees. They are typically written to prevent employees from ever saying anything negative about the company, even if the negative things they say are true.
Companies and employees are already protected under strict laws against defamation (slander and libel), and do not need a non-disparagement agreement to enforce defamation laws. Non-disparagement agreements in these cases serve to prevent employees from ever speaking to anyone about any unlawful treatment they may have experienced while at the company.
It also unfairly targets the most economically and socially vulnerable employees. For example, women, minorities, and other people with families who are faced with unlawful termination and are given the option to sign away their rights and their experience sometimes don't have much of a choice: when forced to decide between supporting their families until they find another job or keeping their right to speak about their experience, they have to choose to sell their their silence.
Do companies actually enforce these agreements, and go after people who speak truthfully about their unlawful treatment? It's hard to know, because if they do it may be covered by a forced arbitration agreements, in which case the employee is prohibited from speaking about it and it never becomes public record.
What companies can do: put an end to the practice of requiring employees to sign non-disparagement agreements in exchange for severance pay.
3. End Unnecessarily Strict Workplace Confidentiality Agreements
Joining a tech company sometimes means signing a gigantic confidentiality agreement that may include sections on non-disparagement and prohibitions against speaking about unlawful workplace conditions. Companies are already protected by serious federal and state laws against employees stealing or sharing confidential trade secrets or otherwise harming the company in related ways. As I mentioned in #2, non-disparagement and workplace conditions clauses only exist to protect the company from employees speaking out about unlawful or inappropriate treatment.
What companies can do: limit confidentiality agreements to only that which is already covered by law, and remove any non-disparagement or other clauses that prevent employees from speaking about any unlawful treatment.
4. Institute Useful Harassment, Discrimination, and Retaliation Training
Most companies have sexual harassment training, but they need to take it a step further. Over the past three months, I have been contacted by hundreds and hundreds of women who have been the victims of harassment at some point in their professional careers, and many of them ask me the same question: what do I do if I am harassed? That this question is even being asked means that companies need to do a better job educating their employees about handling harassment and other unlawful behavior and that companies need to be better at holding themselves accountable.
What companies can do: start offering training that clearly explains employees' legal protections under state and federal laws, that gives clear examples of unlawful and otherwise inappropriate behavior (that can escalate to unlawful behavior), that encourages employees to carefully document unlawful or inappropriate behavior and teaches them how to document it, and that clearly states who they need to contact in the company and how those people are accountable and how to escalate if problems are not resolved.
5. Enforce Zero-Tolerance Policies Toward Unlawful and Inappropriate Behavior
Harassment, discrimination, and retaliation are illegal under state and federal law. There are never any excuses for covering up, for supporting, or for ignoring unlawful behavior. If a company has properly trained all employees about harassment (see #4 above), there are never any reasons to give multiple "chances" to employees who harass, discriminate, or otherwise treat their coworkers unlawfully and/or inappropriately. If, after a careful investigation, the company has determined that the employee acted unlawfully or inappropriately, the outcome should be a swift termination.
Employees who violate harassment, discrimination, or retaliation policies are not "brilliant jerks" - they are a huge risk to the company and a very real and scary risk to their fellow employees. There's nothing "smart" or "brilliant" about breaking the law and/or treating coworkers inappropriately.
What companies can do: institute a zero-tolerance policy to protect both the company and its employees from unlawful and/or inappropriate behavior.
Disclaimer: I am not a lawyer. This post should not be considered legal advice - it is only my opinion. If you have any legal questions, if you are a company with legal issues, or if you are an employee who is the victim of unlawful treatment, please contact your local bar association for a referral to an employment lawyer.