What do you do when/if an employee voices concerns about sexism, pay discrimination? Do you let that influence performance evaluations? Do you tell those employees that their complaints will be reflected in their evaluations?
Would you instruct that references such as “Boys Club” and “sexism” in survey findings be redacted? Would you disallow employee surveys altogether?
I hope not.
What if one or more employees sue? Can you force them to arbitrate their claims individually?
What happens if you try any of the above, and what should you do when faced with such allegations? Read on and find out…
Niantic, the developer of Pokemon Go was accused of just that. A former employee, Jane Doe, filed a proposed class action lawsuit in July. Jane Doe learned that her pay not only was below the publicized salary range for her position, but that a male co-worker in a position below her was earning more than she was — even after she received pay raises. She talked with other female co-workers and found she was by no means alone.
Niantic responded primarily by seeking to compel each individual employee to arbitrate their claims– not an uncommon tactic. Divide, conquer — and try to intimidate.
There’s only one problem. Niantic is a CA employer. CA law prohibits forced arbitration of sex discrimination claims. (There is also a federal law, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) but unlike the CA law, that only applies to sexual harassment and assault and not other sex discrimination claims.)
Niantic argued that all the employees had signed a mandatory arbitration agreement when hired. Yes, it acknowledged the law against arbitration of sexual bias claims, it says that some of the claims are not actually sexual bias claims and those claims that do, the sexism aspect was “not relevant”.
The judge didn’t buy it (and frankly, he shouldn’t have). While Niantic is in the business of selling fantasy or at least alternate reality, that doesn’t appear to have worked in this instance. It looks like Niantic is facing a large class action lawsuit with sex discrimination, pay discrimination and retaliation claims.
Given the sheer number of plaintiffs, even if only a fraction of the allegations are true the facts still look very bad for Niantic.
We’ve seen and heard of these claims before. I want to highlight something that I’m not sure gets discussed — or at least not enough. If you are an employer and you get multiple complaints of this type, at the very least it says the following about you:
1. You likely have a pattern of and practice of sex discrimination, and a toxic work culture.
2. You’ve allowed it to get to the point of a class action lawsuit and you are willing to spend lots of money and devote lots of time and resources that is probably better spent on other pursuits.
3. Your personal investment in preserving a culture of bigotry and hate (and perhaps privilege for a very few at the expense of everyone else in your company) is more important to you than healthy interpersonal relationships or even good business decisions.
I mean, c’mon, paying these employees what they’re worth would have cost far less money and effort than Niantic is willingly expending now.
While companies should always have and utilize good employment counsel, they can choose HOW to use them. You can do so proactively to set up a compliant — and positive, healthy workplace – or you can follow in Niantic’s footsteps. Which will you choose?
Are you an employer interested in proactively addressing workplace challenges and company culture? Visit my website, http://www.janetteleveylaw.com to contact me for a complimentary 20-minute consultation.
Watch my television interview on Good Morning HR with Mike Coffey on Mental Health and the ADA.
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