
Microsoft Moves to End Secrecy in Sexual Harassment Claims - htiek
https://www.nytimes.com/2017/12/19/technology/microsoft-sexual-harassment-arbitration.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news
======
rectang
Ending forced arbitration was number one on Susan Fowler's list of "Five
Things Tech Companies Can Do Better":

[https://www.susanjfowler.com/blog/2017/5/20/five-things-
tech...](https://www.susanjfowler.com/blog/2017/5/20/five-things-tech-
companies-can-do-better)

    
    
        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.
    

Microsoft's change of policy makes sense when you consider that NDA's are
losing their effectiveness in cases of sexual abuse:

[https://www.reuters.com/article/us-usa-misconduct-
agreements...](https://www.reuters.com/article/us-usa-misconduct-
agreements/sexual-misconduct-outcry-makes-u-s-lawyers-rethink-confidentiality-
idUSKBN1ED1DM)

    
    
        Some states already have laws restricting
        confidentiality agreements that conceal "public
        hazards," such as product defects or environmental
        contamination.
    
        The same reasoning could potentially be used to
        invalidate non-disclosure agreements covering
        allegations of sexual misconduct, lawyers say,
        on the theory that some harassers could pose danger
        to others if their conduct is not revealed.

~~~
marcoperaza
Binding arbitration and confidentiality agreements are two totally different
things, that seem to be getting conflated here. There is a defensible argument
for not allowing mandatory binding arbitration for certain things.

But eliminating the ability of parties to agree to a confidential settlement
is a huge mistake.

It will result in victims getting less money. An allegation of harassment,
without further evidence, is not going to fare well in court. Yet the accused
might be willing to pay a settlement to put the matter to rest and avoid
negative publicity. By prohibiting them from getting confidentiality in
exchange for payment, you have removed their largest incentive to pay the
accuser. Further, a publicized settlement will be taken as an admission of
guilt, which is a further incentive to go to court.

And those accused, who may be innocent, are protected as well. They can avoid
having their name smeared in the media, where they stand no chance of getting
a fair hearing in the current climate.

~~~
gpm
Accusers getting more money isn't good for the public. Incentive to settle
without a fair trial in something as serious as sexual assault is not only not
good for the public, it's bad for the public. Due process exists for a damn
good reason.

Preventing sexual assaults is good for the public, publicizing cases of sexual
assaults may well have a tendency to do that.

Based on your arguments above, I would come to the conclusion that NDAs on
this should be banned. But I haven't thought enough about the topic to
conclude that there aren't successful counter arguments.

~~~
sverige
I would argue that the recent wave of "guilty until proven innocent" and
"guilty when accused, and more guilty if accused by more people" is even worse
for public policy. Due process does indeed exist for a good reason, one of
which is to prevent a situation where mere accusations have the power to
destroy lives.

Does this mean I think any or all of the recent high-profile cases are
innocent? Oh shit, wait, it _doesn 't matter what I think unless I'm on a jury
or in a position to hire or fire the person who is accused._

It's easy to feel smugly righteous about a lot of these cases, but the reality
is that it _does_ matter if innocent people are caught up in the hysteria. I'm
not quite sure when the media collectively decided that it was a good idea to
promote abandoning the principle of "innocent until proven guilty," but the
long-term consequences of this are likely to play out in very unexpected and
ugly ways that will affect most or all of us in areas that have nothing to do
with sexual harassment.

~~~
greglindahl
Society has not abandoned innocent until proven guilty in court cases. That's
where that standard applies.

~~~
jeffdavis
Courts do have stricter standards for admission of evidence and verdicts. But
the basic innocent-by-default is a general principle that should apply pretty
much everywhere.

And there should be consistency and standards in media reporting of
allegations, and for HR decisions.

~~~
geofft
The thing about innocent-by-default is that false accusations are _also_ a
serious crime with serious penalties (for good reason), and if you believe
that the accused is affirmatively innocent, you have to believe that the
accused is guilty.

The reason that courts, specifically, do not have this paradox is that
"innocent" simply means "we do not have the evidence to justify using the
extraordinary punishment powers reserved to the government alone against this
person". Yes, there's such a thing as getting a court to declare you
affirmatively innocent, but usually they say "not guilty," which is an
important philosophical distinction. So a court can very well decide that a
person has not been proven guilty of their crime, and that their accuser has
not been proven guilty of malice, either.

But humans don't work like that. When we think "innocent," we don't think "I
have insufficient data," we think "they didn't do it". It is arguably a flaw
in human thinking, but it's a flaw we have to live with and work with. And a
world in which all who accuse people of sexual harassment are effectively
guilty-until-proven-innocent in the court of public opinion isn't a great
world, either.

~~~
solidsnack9000
_...if you believe that the accused is affirmatively innocent, you have to
believe that the accused is guilty._

This is not strictly or even practically true, but you acknowledge that later.
When the defendant prevails in a court case, we don’t turn around and lock up
the plaintiff.

You go on to say:

 _...a world in which all who accuse people of sexual harassment are
effectively guilty-until-proven-innocent in the court of public opinion isn’t
a great world, either._

If you replace “sexual harassment” with any other accusation, do you still
feel the same way? With regards to the flaw in human thinking you mention — do
we have to work with it for all kinds of accusations, or is it specifically a
problem for sexual harassment?

~~~
ggg9990
False accusation is a particular problem for sex crimes because the legality
of the act depends on consent.

You can't explain away a dead body saying "he asked me to murder him." But you
can explain away evidence of sexual intercourse by saying "it was consensual."

~~~
dragonwriter
> False accusation is a particular problem for sex crimes because the legality
> of the act depends on consent.

That's true of criminal assaults in general; striking someone with their
consent is usually not a crime.

> You can't explain away a dead body saying "he asked me to murder him."

You can in jurisdictions where assisted suicide is legal. And even where it's
not, a combination of no intent to kill plus consent can render an act that
otherwise would be murder (even with either of those factors alone) into a
non-criminal.

Sexual assault isn't different because consent matters, it differs because
juries are more sympathetic to the accused (at least, accused from certain
backgrounds) when it comes to _determining_ whether there is sufficient
grounds to believe consent may have been present or to dismiss such a belief.

------
electrograv
Very happy to see a major tech company that puts their money (and policy)
where their mouth is, on such an important issue — even when it goes against
the “legally safest” status quo that companies tend to take.

Other tech companies and tech culture in general should take note, and follow
suit _if they actually care about this issue._ Executives and HR statements
are nice to hear I suppose, but even better is actual _change_.

To the little people like us, take note from a different perspective: Watch
for which companies are all talk and no action. Take action through which you
choose to work for. If you don’t have a choice, do your best within a company
to promote positive cultural change.

------
WhyNotHugo
I'm honestly amazed that these clauses are legal in the US.

There are certain rights which now cannot renounce in many countries -- the
right to sue someone [in court] for sexual harassment is one of them (or any
criminal activity really).

These "Forced Arbitration" sound really odd TBH. I understand that businesses
might want to settle things behind closed doors, but this sort of things sound
like too much.

------
maltalex
Related, from three days ago: Tax Bill Would Curb Breaks for Sexual Abuse
Settlements ([https://www.nytimes.com/2017/12/16/us/politics/tax-bill-
hara...](https://www.nytimes.com/2017/12/16/us/politics/tax-bill-harassment-
settlements.html))

------
PastaMonster
What is the real reason Microsoft is doing this?

Companies don't do anything just because it's the right thing to do. Putting
out a fire? Trying to kill a lawsuit? Perhaps the good ol' economical
incentive? What have made Microsoft to lift a finger? And which finger?

~~~
pc86
Companies are not monolithic entities, they're made up of people. If you truly
believe that companies never do something because it's the right thing to do,
then you can't honestly believe that _people_ ever do something because it's
the right thing to do.

I don't see any direct economic or legal upside for MS doing this. However
they've now got a very positive NYT article on it and the associated positive
PR, so there's certainly some economic benefit in the long term, even if it's
impossible to measure.

------
chaostheory
It's probably just not Satya Nadella, but ever since he took the reigns at MS,
things have gotten better and better. Of course I may have missed something.

~~~
InclinedPlane
He's alright. Mostly it's just the contrast from the previous CEO who was not
great for the company.

~~~
chaostheory
imo It's not just the previous one. Bill is an awesome philanthropist, but I
see Steve's reign as a continuation of 'What would Bill do?'.

~~~
InclinedPlane
Bill has some characteristics that hurt being a CEO but he had many that
helped, Ballmer lacked most of those. Bill was confident in his authority so
he was comfortable with people challenging him, and was willing to give his
ego a rest in order to see the bigger picture or make the right decision for
the company. Things that Ballmer couldn't do. Ballmer purged the top tier of
MS of talented leadership because he saw it as a threat. Ballmer chased after
companies in completely different industries (google, apple) because he
couldn't stand Microsoft not being top dog in every tech niche, and nearly
tanked the company doing so.

------
_pmf_
So, it's now guilty until proven innocent?

------
walshemj
Good but only up to a point it will just mean better compromise agreements and
more $$ for lawyers.

Most people with these sort of harassment cases will prefer to settle out of
court as the process can be brutal - only very brave and often wealthy people
will do this.

This is from direct experience as I have counselled people in cases of
bullying.

------
wedoydphc
Microsoft's hand was probably forced.

"Mr. Smith of Microsoft said he first became aware of the Senate bill after
meeting with Mr. Graham in Washington to discuss cybersecurity and
immigration. Mr. Graham urged Microsoft to support the bill, Mr. Smith said."

Urged is likely a euphemism. There was probably a quid pro quo.

