BuzzFeed Report: Google’s sexual misconduct policy “does not apply retroactively to claims already compelled to arbitration”

On 8th November, Google updated its sexual misconduct policy in response to the #GoogleWalkout that protested the discrimination, racism, and sexual harassment that employees encountered at Google’s workplace. Following this, Sundar Pichai announced a ‘comprehensive’ plan to incorporate transparency into how employees raise concerns and how Google will handle them. One of the main points publicized to a great extent was that Google eliminated forced arbitration in cases of sexual harassment.

Now, fresh reports have emerged that Richard Hoyer, a lawyer for Loretta Lee, the ex-Google software engineer who filed a sexual harassment, gender discrimination, and wrongful termination suit against her former employer earlier this year, told BuzzFeed News that a Google attorney stated the policy change would not apply to her ongoing case.

Google lawyer Brian Johnsrud sent an email (reviewed by Buzzfeed) to Hoyer last Friday which stated, “Google announced a prospective policy change which applies going forward to individual sex harassment as well as sex assault claims. This kind of policy change does not apply retroactively to claims already compelled to arbitration.”
In response to this claim, Hoyer told Buzzfeed that “Google says, ‘We will not force employees into arbitration,’ and [the] response to me taking them up on that is, ‘Oh, we didn’t say when.’ It was a shock to see Google renege on the announcement that [the company] went through a lot of effort to publicize.”

Loretta Lee’s suit, filed in February 2018, alleges she was “ routinely sexually harassed” without any intervention on Google’s part to stop the harassment. The suit further states that male coworkers spiked her drinks with alcohol, one male co-worker messaged her to ask for a “horizontal hug”; and that at a holiday party, a drunk male coworker slapped her. According to the lawsuit, she found a male coworker hiding under her desk and “believed he may have installed some type of camera or similar device under her desk”. Post the complaint filed in the HR department of Google, the lawsuit states that Lee’s male co-workers retaliated against her. They refused to approve her code and stalled her projects, thus making it more difficult for her to succeed at work.

In September 2018, the Lee case was compelled into arbitration. Hoyer, told BuzzFeed News that there still would have been time to appeal the court’s order compelling arbitration.

On the day of Google’s announcement to end forced arbitration, Hoyer contacted Google's lawyer to say Lee elected not to arbitrate her claims. According to emails reviewed by BuzzFeed News, Google’s lawyer delayed the reply for a week and finally stated that the company would still force arbitration for her case. Apparently, the reply was received on the very last day that Lee could have appealed.

According to Buzzfeed, the email exchange between Hoyer and Johnsrud showed that in October, Lee sought to negotiate a monetary settlement with Google. The reply received from Johnsrud was not befitting at all: “I was surprised to receive your voicemail making a settlement demand after Ms. Lee has tried to trash Google in the press and avoid arbitration.”

He further added that unless Lee substantially reduced her settlement demand, Google would prefer to proceed with arbitration.

Private arbitration often shields a firm from workers airing their grievances in open court, and also results in lower-cost settlements between the oppressed worker and the employer.

In mandated arbitration, there are no rules of evidence and there is no public access to what happens as compared to a traditional court settling. Many cases of mandated arbitration have not lead to a fair settlement between the employer and employee. Google’s roll back on its policy statement in Lee’s case looks like a massive discouragement for workers suffering from sexual harassment at other workplaces.

Head over to BuzzFeed for an entire coverage of this news.