> institute a zero-tolerance policy to protect both the company and its employees from [...] inappropriate behavior
No, no no no. White males are not the only aggressors in our society (or even our industry), and zero-tolerance policies for "inappropriate behavior" swing the balance too far in the opposite direction.
More specifically, it eliminates the chance for redemption - for recovering from honest mistakes - and puts the jobs of every single person in the hands of people who haven't earned that power.
I'll agree with not tolerating illegal behavior (and harassment is already well defined enough to incorporate "inappropriate" behavior), within the bounds of the law. Anything beyond that, especially zero tolerance policies, makes it too easy for bad actors to exploit. Once you create that fear of reprisal from your colleagues for a single misspoken word or ambiguously interpreted action, you've lost any chance at having a productive environment.
What needs to happen is a kind of re-education of people to learn how to act appropriately in the company of others or when they choose to associate with others (within a company). And it needs to happen from elementary school. But it needs to avoid the us-vs-them of political correctness. It has to be simple and apply to everyone. The implicit message also has to be the same as the explicit message, in this regard.
The road to hell is paved with good intentions is the first thing that comes to mind --or the cobra effect as well, or production quotas in Marxist systems. In trying to treat one issue, you create another just as problematic issue.
Interestingly, one can see high participation of women in discriminatory cultures like those in India, China, Russia, etc. There professional jobs are an avenue of escape from social domination --and I'm sure we don't want to achieve balance in employment via those means.
I am a black engineer and I have experienced unfair treatment at a startup. I think most of these suggestions are good. I'm wary of zero tolerance policies though. Also I think this stuff applies to everyone and not just women and minorities. (Or is this one of those "All Lives Matter" things where that would offend people??)
I have to say that I don't agree with all the detail, and a small number of wrong-headed disgruntled employees need to be restrained for the benefit of themselves and everyone else around them, but I do agree that actually dealing with unnecessary and nasty behaviour rather than hiding or even encouraging it is the way to go.
No you can't. All an arbitration clause changes is it forces* you to go through the arbitration process before suing the company. Needless to say, if you don't like the outcome of the arbitration you can sue your employer as normal, and make all those materials public through inserting them in the court record.
The world is full of arbitration processes and mostly they do a world of good.
I've gone through an arbitration process and won against the organisation (mostly against one person with a grudge actually). Also I've helped someone else work through that who went on to a regular court afterwards because she did not feel satisfied about the outcome. She won in the court system.
It is good practice, of course, if you go to normal court after arbitration to analyse the arbitration process in your specific case and prepare an explanation of why the outcome wasn't reasonable.
* unless you can point out a good reason to a judge why the arbitration process itself wasn't reasonable.
I am not a lawyer. My understanding based some number of years dealing with contracts is that binding arbitration precludes the parties' ability to bring a civil suit in regard to the arbitrated matter.
Your argument would be given. more credence if you didn't compare it to slavery. You are insulting and belittling the conditions of modern slaves like foreign laborers in Dubai whose passports are taken away when they enter the country and women who are forced to take drugs and work as sex slaves.
Contracts bind you to do (or not do) things you would otherwise have the right to not do, or do, as you choose. That's the whole point!
Wouldn't it be possible in most countries to sign a contract promising not to disparage someone publicly, in exchange for money or other consideration?
People throw the word "constitution" around, but it seems entirely reasonable for the US constitution to allow you to sign away access to your state's courts. For federal, I'd support it, but it's not clear to me that you currently can:
* "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
* "The judicial power shall extend to all cases, in law and equity, arising under [...] the laws of the United States,"
If you sue somebody for selling your information, that's a "case [...] in equity", and the basis for your lawsuit should have some basis in federal law. So only the US court has judicial power over it. I'm not sure if Congress has the power to designate arbitration companies as courts, since this law instead uses the commerce clause:
A counter-argument could be that for breaches of contract specifically, you could write arbitration into the contract and the US court should clearly side with the arbiter in that case. The arbiter wouldn't have the power to send police or anything, but it would have the power to make a decision that the contract defers to and which the court would use.
If it's not a breach of contract but is instead e.g. your landlord keeping your security deposit according to an illegal contract, I don't think a court would defer to an arbitrator's decision to uphold it.
Of these three cases(arbitration over state law, arbitration over breach of contract(but enforced by US court), arbitration over illegal contract), only the 3rd seems that it could be a violation of US constitutional rights.
The article is also misleading in this aspect: It's not possible for companies to do anything for your constitutional rights. If they could, they would instead be employer-provided benefits. Similarly, it probably doesn't make sense to ask Congress, your representative, or your state legislature for a law "protecting your constitutional rights", which I expect would be the next follow-up ideas.
My question: Do the people complaining about a constitutional right to access the court necessarily also think the commerce clause is too broad? That seems unlikely to me.
Another question: Would the same people complaining about arbitration complain if e.g. the company said, "Either sign away your right to arbitration, or lose $10k/year in salary that's going straight to our umbrella insurance"? If you banned arbitration, the extra risk would probably come out of your salary even if the company doesn't tell you and even if you find it hard to understand exactly how.
No, no no no. White males are not the only aggressors in our society (or even our industry), and zero-tolerance policies for "inappropriate behavior" swing the balance too far in the opposite direction.
More specifically, it eliminates the chance for redemption - for recovering from honest mistakes - and puts the jobs of every single person in the hands of people who haven't earned that power.
I'll agree with not tolerating illegal behavior (and harassment is already well defined enough to incorporate "inappropriate" behavior), within the bounds of the law. Anything beyond that, especially zero tolerance policies, makes it too easy for bad actors to exploit. Once you create that fear of reprisal from your colleagues for a single misspoken word or ambiguously interpreted action, you've lost any chance at having a productive environment.