Binding Arbitration and Nondisclosure Agreements

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  • Harvard Law School Calls to End the Secrecy on Harassment and Discrimination
    An Open Letter to the Harvard Law Community on Employer Mandatory Arbitration, Non-Disclosure, and Class-Action Waiver Agreements As students, faculty, and alumni, we are proud of Harvard Law School’s robust anti-discrimination policy and commitment to the pursuit of equity and justice. Today, we are calling on Harvard to honor this commitment. To do so, we ask that Harvard require all employers recruiting on campus protect the rights of their employees by ensuring that, should an employee experience harassment, discrimination, or workplace abuse, they are able to come forward and seek redress in court. As has been recently revealed, several prominent law firms that recruit at Harvard’s Early Interview Program (EIP) have been forcing incoming summer associates to sign a mandatory arbitration agreement, with an accompanying non-disclosure agreement (NDA), as a condition of employment. These secret arbitration agreements and non-disclosure provisions cover all employment-related claims between the employee and the firm, including complaints of sexual harassment and other forms of gender, race, color, religion, national origin, sexual orientation, gender identity, and disability discrimination prohibited by Title VII and other applicable civil rights laws. Fortunately, a group of law professors, including HLS Climenko Fellow Ian Samuel, focused attention and public pressure on these policies. In response to the public outcry, several firms announced their intention to drop the NDA and mandatory arbitration requirement not only for summer associates, but also for all associates and staff. [1][2] Along with similar student movements at peer institutions, including Berkeley Law School, Georgetown University Law Center, Yale Law School, we ask that Harvard protect its students as they begin their legal careers. No industry is free from sexual harassment, discrimination, or workplace abuse — and the legal profession is no exception. [3] Secret arbitration and overboard NDAs hinder our ability to end harassment and discrimination by silencing employees who experience it, forcing them into secretive proceedings that are stacked against victims, and effectively covering up workplace abuse. [4] Harvard Law’s Office of Career Services already prohibits “all employers using the facilities and services of the Office of Career Services” from discriminating “against any person on the basis of race, color, religion, creed, national or ethnic origin, age, sex, gender identity, sexual orientation, marital or parental status, disability, source of income, or status as a veteran." [5] However, HLS has no explicit policy requiring employers recruiting on campus to preserve the rights of students to bring harassment or discrimination claims in court and to publicly discuss these claims. The practice of silencing employees through coercive contracts has a disproportionate impact on those the anti-discrimination policy is intended to protect, defeating the purpose of our HLS policy and any commitment to solving the diversity pipeline problem. While each individual student lacks the necessary bargaining power to refuse such mandatory agreements, HLS could remedy this collective action problem by adopting the following policy. We respectfully request that the Office of Career Services require that all employers who recruit through the EIP, the Spring Interview Program (SIP), and the Public Interest Interview Program (PIIP) remove from their contracts conditions that require any employee, including associates, staff, or summer associates, to agree as a general condition of employment to: (1) a mandatory arbitration agreement, (2) a non-disclosure agreement that covers discrimination, harassment, or other workplace misconduct, or (3) a class-action waiver. We further ask that Harvard issue an anonymous workplace climate survey to all students returning from summer employment, to gather key data about workplace sexual harassment that will inform our continuing efforts to end discrimination in the legal profession. By enforcing this measure, Harvard will take a clear stand for its students and alumni and will reinforce the law school’s commitment to the pursuit of justice for all. Merely disclosing which firms require employees to sign secret arbitration agreements will fail to achieve our shared goal of ending discrimination in the legal profession. Disclosure simply place the burden on students at risk of discrimination —principally women, people of color, members of the LGBTQ community, and people with disabilities—to opt out of important professional and intellectual opportunities. Mandatory disclosure would perpetuate the burden placed on women and others to select out of opportunities that provide pathways to the highest positions in the legal profession. Our aim is to eliminate the inequities in the legal profession, not to exacerbate them; for this reason, we believe that a clear set of standards for all organizations that recruit on campus is the only outcome that lives up to Harvard’s values of equity and access to justice. HLS has historically taken a leadership role in fighting discrimination in the legal profession. We call on Harvard to do so again, and adopt these policies in order to fulfill its mission “to educate leaders who contribute to the advancement of justice and the well-being of society.” [1] https://twitter.com/Orrick/status/978344236725735425 [2] https://takecareblog.com/blog/munger-tolles-proves-why-we-still-need-metoo [3] https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/2018_hod_midyear_302.docx [4] https://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html [5] https://hls.harvard.edu/dept/ocs/employers/employer-recruiting-policies-and-guidelines/ For more information, contact us at: pipelineparityproject@gmail.com
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  • Arbitration and Nondisclosure Requirements by Law Firms
    These types of agreements may be legal, but they cut against core Georgetown values. Our community is grounded in a Jesuit tradition that supports the well-being of the whole person—the “cura personalis.” And the law school’s motto is, “Law is but the means; justice is the end.” In order to live up to these values, Georgetown must do its part to end the use of mandatory arbitration and NDAs in ways that silence the victims of sexual harassment and workplace abuses. [1] https://takecareblog.com/blog/munger-tolles-proves-why-we-still-need-metoo [2] https://twitter.com/Orrick/status/978344236725735425 [3] https://twitter.com/isamuel/status/979375191175450625 [4] https://goo.gl/FYujGs Contacts: Stephen Schultze (sjs280@law.georgetown.edu), Rachel Lee (sp497@law.georgetown.edu), Nicholas Wertsch (nmw9@law.georgetown.edu)
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