So far, Coulter said, more than 100 companies including U.S. Bancorp and Delta Air Lines have said they don’t currently use the practice or never have. A handful of others, including Pfizer and Morgan Stanley, have said they mandate it for U.S. employees or have an opt-out policy. (Nearly 370 companies have not responded.)
The idea is that forcing companies to go public about forced arbitration could create accountability and push more employers to end the practice.
“It’s sort of shaking the tree in such a way that when one apple falls, we’re able to use that to our advantage,” said Coulter, who says social media and consumer responses to the #GrabYourWallet campaign influenced retailers to remove or not display Trump products. (In news coverage at the time, retailers pointed to falling sales as the reason.) “We wanted the site to be an engine of change versus a static collection of information.”
Coulter’s effort is one of a wave of campaigns against mandatory arbitration and nondisclosure agreements. NDAs have been in the spotlight in the Democratic presidential campaign, with rivals hammering Mike Bloomberg over whether he would release former employees from the policies; he later said he would release three women who accused him of making offensive comments.
Research has found arbitration more often settles cases in employers’ favor, and critics say it can mask corporate cultures that protect serial harassers. Several large law firms have ended the practice after a group of elite law school students protested, and Google employee protests prompted the search giant to change its policy in 2018, a decision other tech companies have also made.
Besides Coulter’s efforts, investors have filed at least 11 shareholder proposals this year to get companies such as Tesla and Dollar General to disclose more on the issue, according to Whistle Stop Capital principal Meredith Benton. On Feb. 12, Wells Fargo said it was ending mandatory arbitration for sexual harassment claims following feedback from stakeholders, including Clear Yield Asset Management, which had submitted a proposal.
In December, former Fox News personalities Gretchen Carlson, Julie Roginsky and Diana Falzone launched a campaign aimed at ending mandatory nondisclosure agreements and forced arbitration clauses.
Carlson said in an interview she has been discussing the issue with banks, noting there’s often a “domino effect”: “That’s our hope with this. We saw it happen in the tech world.”
After the #MeToo movement took off, Force the Issue co-founder Robasciotti began talking to women’s rights activists about different ways for investors to evaluate companies for hidden reputation risks.
What she heard, she said, was “this isn’t just an issue of sexual harassment — it’s an issue of serial sexual harassment,” and mandatory arbitration policies can help hide those risks. After meeting Coulter, the two talked about creating a database. Robasciotti approached the Tara Health Foundation, which funded the project and introduced her to Kuo; she also got more than 50 investors to sign a letter of support.
There have historically been few resources for easily checking which companies mandate arbitration for employees, said Alexander Colvin, a professor at Cornell University’s ILR School. “There are indirect ways you can access it, but it’s not easy to find out,” said Colvin, the author of a 2018 report that found 54 percent of the 627 employers surveyed anonymously said they had mandatory arbitration; the rate was higher among large employers.
Debra Katz, a Washington-based lawyer who frequently represents plaintiffs in harassment and discrimination cases, said “mandatory arbitration favors corporations, favors repeat players that hire arbitrators” and notes “the likelihood of prevailing is far less for individuals.” She said she doesn’t see many policies that allow opt-outs, but can see how new employees might worry that not signing could send the wrong signal. “Your employer may perceive you as a risk of being someone who is litigious. You could be perceived to be a troublemaker,” she said.
Coulter, who said she had been approached by several politically oriented groups after the #GrabYourWallet effort, thought it was a good next step. The retail boycott had always been more about her aversion to the inappropriate workplace behavior Trump showed in the “Access Hollywood” recording, she said, than politics.
“The through line to me was sexual harassment,” said Coulter, who says she experienced sexual harassment on the job in her 20s.
So far, Coulter knows of one company that has made changes as a result of her outreach. Following her initial email, MGM Resorts changed its arbitration requirement for sexual harassment for a small group of executives who choose to sign employment agreements instead. A spokeswoman, Debra DeShong, said in an email to Coulter that “our general counsel has determined that we will no longer utilize mandatory arbitration for allegations of sexual harassment.” DeShong confirmed the change to The Post.
Coulter and Robasciotti suspect other companies have made changes to their policies but haven’t told them, waiting months since their initial outreach to finally confirm they don’t require arbitration.
Yet the two say they don’t care if they get credit.
“Corporations have every reason to not appear like they’re bowing to activists,” Robasciotti said. But “the more companies that go public saying they don’t have this practice, the more that becomes the standard for corporate behavior.”