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In the wake of the #MeToo movement and a larger battle against sexual misconduct in the legal community, 12 law school women’s groups — including two at Yale — have vowed not to accept any funds from law firms that prevent employees from filing lawsuits against their employer.

Yale Law Women, the Yale Law Women of Color Collective and 10 other women’s associations at top law schools released a joint statement Monday condemning mandatory arbitration agreements. A mandatory arbitration agreement — often signed when a prospective employee accepts a position — requires employees to bring complaints against their employer before a specified neutral arbitrator that is typically hired by the company, as opposed to settling the dispute in court. Depending on the employer-employee contract, these claims can range from sexual harassment to wage discrimination disputes.

In the statement, the groups promised to “no longer accept funds from any law firm that requires employees to sign mandatory arbitration agreements … or refuses to disclose in future surveys whether or not they do so.”

“Fundamentally, we feel that all employees should have the right to redress any issues that arise in the workplace in whatever forum they want,” Yale Law Women Advocacy Chair Samantha Peltz LAW ’20 told the News. “Really all we’re asking for here is that they not be barred access to one avenue for seeking relief for the claims of things that happen in the workplace. When you boil it down to that level, it’s a pretty simple ask. It doesn’t seem like much, and we’re hopeful that big law will agree.”

Peltz and Yale Law Women Professional Development Chair Sarah Levine LAW ’20 emphasized that the Monday statement from women’s law groups is significant because of how Yale Law Women and similar groups at other institutions receive their funding. While Yale Law School partially funds the affinity group, it also largely relies on big law firms for “the vast majority” of programmatic funding, Levine explained. Oftentimes, the group holds workshops or recruitment events with firms that financially contribute to its operational costs. According to Levine, the association received funds from 12 law firms this past summer.

“It’s not unfair to say that we could do a very small percentage of the things we do without the money that we get from law firms,” Peltz said. “That’s why this is an important step for us and why it has an effect on what we might do as an organization.”

The Monday statement also mentioned Yale Law Women’s commitment to including questions about employment practices, such as mandatory arbitration, in its annual report on gender equality and family friendliness among law firms. Every year, Yale Law Women publishes this report online in order to “monitor trends in family friendliness among law firms ranked in the Vault 100,” according to the group’s website.

The joint statement also noted that the groups will expand their advocacy beyond just legal associates and encourage firms to eliminate all mandatory arbitration practices, which harm women as well as other underrepresented groups.

“We are eager to use our tenure to publicly disavow employers whose policies structurally disadvantage the labor force’s most vulnerable employees, including women, people of color, gender nonconforming individuals, individuals with disabilities, and the LGBTQ+ community,” the statement read.

But this was far from the first time Yale students and administrators have acknowledged injustices rooted in mandatory arbitration practices. According to Levine, students from law schools across the nation joined together to draft a letter last spring expressing their opposition to mandatory arbitration and explaining why they believe the practice is unfair to employees.

In May, 50 law schools across the country — Yale included — sent a survey to all member firms of the National Association for Law Placement regarding their arbitration and nondisclosure provisions in their full-time and summer associate employer agreements. The survey — which was ultimately completed by 187 employers — stated that it aimed to act as “a mechanism for employers to provide information to students on employer policies and practices for the upcoming recruiting and hiring season as students assess their career options.”

Kirkland & Ellis, the world’s highest-grossing law firm, abolished its arbitration requirements for associates and summer associates last month. The announcement came just a week after the Harvard Law student group Pipeline Parity Project launched a campaign urging students to reject offers from the firm until it eliminated mandatory arbitration agreements. Monday’s joint statement from law school women’s groups praised the Pipeline Parity Project’s “enormous efforts … to call out recalcitrant employers.”

Following the release of the Monday statement, advocates opposing mandatory arbitration agreements told the News that they are hopeful for change.

Molly Coleman, an organizer with the Harvard Pipeline Parity Project, told the News that the group was “thrilled” to see the joint statement. She said the statement demonstrates the power of collective action and sends a message to employers that students are paying attention to the issue and will not let it be “swept under the rug.”

“We’ve been working with students from across the country for months now, but it’s really inspiring to see [that] so many different organizations are willing to put something on the line here,” Coleman said.

Alyssa Peterson LAW ’19, who has also advocated against mandatory arbitration, said she is glad that the statement is bringing light to the issue. Peterson noted that the attention around the statement creates a “really valuable opportunity” for the public to pressure firms, which is “critical” for eliminating the practice of mandatory arbitration.

According to a 2017 study by the Economic Policy Institute, 53.9 percent of nonunion private-sector employers have mandatory arbitration procedures.

Asha Prihar | asha.prihar@yale.edu

  • Nancy Morris

    Be careful what you wish for. The approach and attitude of the women’s groups described in this article may be counterproductive and perverse. According to a current article in Bloomberg, across Wall Street, men are adopting controversial strategies for the #MeToo era and, in the process, making life even harder for women. Eliminating private arbitration is likely to make things worse.

    While the new personal codes for dealing with #MeToo have only just begun to ripple, the shift is already palpable, according to the people interviewed by Bloomberg, who declined to be named. They work for hedge funds, banks, private equity firms and investment-management firms…AND LAW FIRMS.

    For obvious reasons, few will talk openly about the issue. Privately, though, many of the men interviewed by Bloomberg acknowledged how uneasy they now are about being alone with female colleagues, particularly youthful or attractive ones, fearful of the rumor mill or of, as one put it, the potential liability.

    Bloomberg also reports that some men are simply trying not to be “assholes.” But the recent Kavanaugh kerfuffle demonstrates that such a strategy is likely to be considered ineffective and unreliable by most.

    Bloomberg calls it “the Pence Effect,” after U.S. Vice President Mike Pence, who has said he avoids dining alone with any woman other than his wife. The overarching impact can be, in essence, gender segregation.

    Men across the country are reportedly protecting themselves in the face of what they consider unreasonable political correctness — or to simply do the right thing. The upshot is forceful on Wall Street, where women are scarce in the upper ranks. The industry has also long nurtured a culture and employed arbitration agreements that keep harassment complaints out of the courts and public eye, and has so far avoided a mega-scandal.

    Now, #Metoo is likely inducing Wall Street to be more of a boy’s club, rather than less of one. And that “Wall Street” includes many law firms.

    “Women are grasping for ideas on how to deal with it, because it is affecting our careers,” said Karen Elinski, president of the Financial Women’s Association and a senior vice president at Wells Fargo & Co. “It’s a real loss.”

    The changes can be subtle but insidious, according to Bloomberg.

  • Mary Ann

    It’s curious and disturbing that groups representing themselves as sensitive to both well established, bedrock legal imperatives and women’s needs repeatedly go so far off the rails as the groups reported here. It seems to be a pattern, and a pernicious one. I admit this is off topic, but I think this New York Times article by Lara Bazelon addresses another, relatef manifestation in the same pattern: Resistance to the Title IX reforms proposed by Secretary of Education Betsy DeVos:

    I’m a Democrat and a Feminist. And I Support Betsy DeVos’s Title IX Reforms.

    There is an uncomfortable truth in the current system. No one wants to talk about it.

    Dec. 4, 2018
    By Lara Bazelon

    Ms. Bazelon is the director of the criminal juvenile justice and the racial justice clinics at the University of San Francisco School of Law.

    Education Secretary Betsy DeVos’s proposed regulations overhauling how colleges handle sexual assault, which may become law in January, are far from perfect. But there is a big reason to support them: I’m a feminist and a Democrat, and as a lawyer I have seen the troubling racial dynamics at play under the current Title IX system and the lack of due process for the accused. Ms. DeVos’s proposals take important steps to fix these problems.

    Consider this scenario: A young black man enrolls at a state university in California on an athletic scholarship. He’s the first person in his family to go to college. His teammate’s white ex-girlfriend matches with him on Tinder, comes to his apartment, has sex with him and, they both agree, returns three days later to have consensual sex.

    Weeks later, the young woman, who has reconciled with her boyfriend, claims the Tinder match raped her during the first sexual encounter. The Tinder Match adamantly denies this. Her boyfriend, who is also black, says she is lying. There is no hearing, no chance for the accused to ask her questions.

    But the Title IX investigator concludes that he committed sexual assault by finding her more credible than him under the preponderance-of-the-evidence standard, under which the accuser must prove there is a greater than 50 percent chance her claim is true. He’s one of a few black students on campus and worries he may get killed after word spreads.

    This happened in early 2018 to a client in the pro bono clinic I direct with my law students. We represent low-income students of color in California who face expulsion based on allegations of sexual assault.

    We see what the Harvard Law School professor Janet Halley described in a 2015 law review article: “The general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them.” That’s why the DeVos regulations are a step forward.

    Here is how they would work. Cross-examination would be conducted by an adviser for the accused (not, as some coverage has erroneously said, by the accused.) The accuser may sit in a separate room or participate via videoconference. The right to cross-examine goes both ways: The accused must also answer questions posed by the accuser’s adviser.

    The changes would also do away with the problematic “single investigator system” where the person who interviews the witnesses and gathers the facts also serves as the judge and jury — a method the California State University System uses for its 485,000 students across 23 campuses.

    The revisions are in line with court decisions that have characterized the current system as unfair. In August, the Court of Appeals for the Sixth Circuit, ruling in a case from Michigan, declared that if a public university adjudicates what is essentially a “he said, she said” case, “the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” This year, two California appellate courts have overturned university decisions to suspend students for committing sexual assault because their procedures were so lacking in basic due process.

    Meanwhile, my client has been barred from campus for more than nine months. (His suspension was based on this allegation and a second allegation by another accuser, which was found to be unsubstantiated by the evidence; that accuser is appealing.) The DeVos regulations and the two California appellate rulings are most likely his only hope of avoiding an expulsion that would tar him as a campus sex offender and most likely prevent him from getting into another school.

    The current system of adjudicating sexual assault complaints is broken. Under the rules set up by the Obama administration, hundreds of colleges, including many in California, were placed under federal investigation and threatened with the loss of funding for failing to adequately investigate sexual assault complaints. The definition of what constituted an assault was vastly expanded. Nonpunitive resolutions such as mediation were forbidden, even if that is what both sides wanted.

    The Obama rules were written to address a real problem: a tendency by colleges to sweep sexual assault allegations under the rug. But it also gave risk-averse schools incentives to expel the accused without any reliable fact-finding process.

    The Office of Civil Rights does not collect data on race in Title IX cases, but the little we know is disturbing: An analysis of assault accusations at Colgate, for example, found that while only 4.2 percent of the college’s students were black in the 2012-13 school year, 50 percent of the sexual-violation accusations reported to the school were against black students, and blacks made up 40 percent of the students who went through the formal disciplinary process.

    We have long over-sexualized, over-criminalized and disproportionately punished black men. It should come as no surprise that, in a setting in which protections for the accused are greatly diminished, this shameful legacy persists.

    “I’ve assisted multiple men of color, a Dreamer, a homeless man and two trans students,” Professor Halley told me. “How can the left care about these people when the frame is mass incarceration, immigration or trans-positivity and actively reject fairness protections for them under Title IX?”

    We can fix this. The DeVos reforms are in their public comment period, which gives people on all sides of this debate a chance to weigh in. That is a good thing. I know my allies on the left will criticize my position, but we cannot allow our political divisions to blind us to the fact that we are taking away students’ ability to get an education without a semblance of due process. What kind of lesson is that?

    Lara Bazelon (@larabazelon), an associate professor at the University of San Francisco School of Law, is the author of, most recently “Rectify: The Power of Restorative Justice After Wrongful Conviction.”

    https://www[dot]nytimes[dot]com/2018/12/04/opinion/-title-ix-devos-democrat-feminist.html