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    The title makes it sound like these are things that companies might want to do better. No. From their perspective, these changes would be doing things worse.

    The situation is broken by design. Employers are having a feast, while employees freeze in the outer darkness. Why would they give that up?

    Many tech companies require their employees to agree to forced arbitration. This means that, as a condition of their employment, employees are required to sign away their constitutional right to the public court system. It means that if employees are the victims of harassment, discrimination, retaliation, and unlawful termination, they are not allowed to sue their employers.

    Tech companies love forced arbitration clauses, specifically because arbitration is so unfair (in their favor).

    The people who run these companies aren’t good people who “could do better” if they were just shown the way. They’re psychopaths.

    They’re not allowed to share payroll data and drive down wages. They do. They’re not allowed to maintain or consult suspected unionist blacklists using “back channel references”. They do. They’re not allowed to fire people who discuss compensation. They do.

    Tech barons cannot be trusted. This is a conversation to have with Washington, not with them.

    The way this often plays out is this: an employee who is harassed, discriminated against, retaliated against, or unlawfully terminated is offered a “generous” severance package of a month’s to several months’ pay in exchange for a very strict non-disparagement agreement.

    They’re trying to settle early. This is classic legal combat. I don’t know that it can be changed. In fact, I don’t know that there’s anything wrong with it, other than the fact that most tech employees are pussies (she’s an exception– she spoke out, and I think highly of her for it, because it’s fucking dangerous) who tend to settle too low.

    When the economy is good, people take lousy settlement/severance offers because they don’t want to damage their reputations (it should be illegal to discriminate against people who’ve sued previous employers, but it’s not) and because it’s easy to get another job– and if they want it to stay easy, they won’t sue (even if they’re 100% in the right). When the economy falters, and people realize that their careers have taken permanent hits, all the knives come out and these stories get spilled. This is why I don’t expect Y Combinator to survive the next downturn. I’m sure that they’re prepared for the financial aspect, but what are they going to do with 20 of their companies become massive PR disasters within ten weeks of each other?

    Do companies actually enforce these agreements, and go after people who speak truthfully about their unlawful treatment?

    They try. They send cease and desist letters. They will sue if they think it works in their favor. It has to be public disparagement for them to try. They’re not going to waste their time on a he-said/she-said. They will go after someone who writes about them on a blog, though.

    Companies are already protected by serious federal and state laws against employees stealing or sharing confidential trade secrets or otherwise harming the company in related ways.

    There’s a non-evil purpose to NDAs, which is making it clear that the employee was told what is to be protected. For example, as annoying as it is to sign an NDA before an interview, it sets a clear expectation. It’s not evil for companies to want to protect their interview questions, for example. Without an NDA, no court would consider those to be trade secrets.

    I generally agree with the spirit of what is being said, though. Non-disparagement clauses as a condition of employment should be made illegal. I doubt that they’re enforceable as it is.

    Most companies have sexual harassment training, but they need to take it a step further.

    They won’t. The purpose of that training isn’t to prevent sexual harassment. It’s to make sure that if sexual harassment does occur, the individual rather than the company gets sued. They can say, “We offered him training, but still went and X”. It’s protect the company and upper management from middle management bozos.

    Companies will turn on a manager whose sexual harassment track record makes him impossible to support, but it usually takes several cases, over years, for them to get to that point.

    that encourages employees to carefully document unlawful or inappropriate behavior and teaches them how to document it

    Oh, this is never going to happen. “Here’s how to sue us” courses, brought to you by shady for-profit entities engineered to avoid accountability. Nope.

    There are never any excuses for covering up, for supporting, or for ignoring unlawful behavior.

    I agree, but companies don’t need “excuses”. They only need incentives. Not wanting to risk a product delay by replacing a bad apple with an inexperienced manager, in practice, seems to be enough of one.

    there are never any reasons to give multiple “chances” to employees who harass, discriminate, or otherwise treat their coworkers unlawfully and/or inappropriately. If, after a careful investigation, the company has determined that the employee acted unlawfully or inappropriately, the outcome should be a swift termination.

    Okay, so understand that everyone is disposable to the company. Corporations don’t protect harassers because they “like” them.

    Management is the inner club or the company-within-the-company, and executives are usually one club deeper (a club-within-a-club, or a third-order company). Each has its own rules and policies that are deemed necessary. Executives judge management (including themselves, natch) as needing protection from employees.

    As executives see it, employees are dangerous animals that will steal anything that isn’t nailed down. As executives see it, all lawsuits are attempts by poors to earn money through coercion. These assholes don’t even like paying taxes, so they’re definitely going to feel sour when they get sued. And they’ll never see it as their fault.

    So, when a sexual harassment lawsuit happens, the boardroom assumes that the employee is an opportunistic money-grubbing little shit and the manager is a hard worker who got caught in the middle. This isn’t because they love that manager. Privately, the executives may suspect or know that he’s guilty. But if they don’t protect him, then they’re afraid that the other managers will look around and wonder if they themselves will be protected. Once the middle managers conclude that the company wouldn’t have their back in a dispute with an employee, they’ll leave.

    They’ll throw an unimportant manager into the cold, but only if the publicity cost of protecting him exceeds the internal morale risk that comes with doing so. It’s a calculation. Are they more worried about what the public thinks of them, or what that management level thinks of them? Keep in mind that “companies” don’t decide anything, while individual executives do, and most executives care fuck-all about the company image as long as they can protect their own personal reputations.

    Employees who violate harassment, discrimination, or retaliation policies are not “brilliant jerks” - they are a huge risk to the company and a very real and scary risk to their fellow employees. There’s nothing “smart” or “brilliant” about breaking the law and/or treating coworkers inappropriately.

    They are “a very real and scary risk” to their colleagues. I agree. They’re terrible. They should be fired. In a just world, this behavior would be punished enough that it stopped happening.

    They’re only a slight risk to the company, though. Is Uber out of business because of how this woman was treated? No. Sure, companies lose money because of sexual harassment lawsuits and bad publicity, but unless the CEO gets fired for losing that money, he doesn’t care. Lawsuits are seen as a cost of doing business. Tabloid papers (fake news before the Internet) used to have lawsuit funds. Do you know how many sexual harassment lawsuits a large tech company settles in a year? I’m sure the totals run into the 8 figures. Possibly nine.

    If anything, the bigger danger is the second-order effect. A company will let a middle manager twist in the wind before it puts up 7 or 8 figures for legal defense for an unimportant individual. What if it’s an executive? Well, the company might want to do that in theory, but there are two factors in play: (a) companies are run by other executives, a club with a “protect our own” mentality, and (b) if that ever breaks and the executive is thrown under the bus, other executives will realize that the company doesn’t have their back and change accordingly. Loss of in-group cohesion among executives is what “companies” fear the most– not financial losses (money can be won back) and not even bad publicity. Why? Because companies are run by executives who only care about themselves, but who’ll cooperate when it’s in their favor and see the value in keeping the in-crowd intact.

    We’re not talking about people or organizations that “could do better” if they were just shown the way. We’re talking about really bad people and organizations that won’t do better unless the law forces them, and that will fight positive change even then. Consider all of the things that are already illegal but that companies still do.

    It’s illegal to maintain unionist blacklists. Yet, companies do. Not only that, but people who sue them (or even cost more of a settlement than the company thinks it should pay) often end up on them for reasons that have nothing to do with unions. Moreover, these days the corporation doesn’t say, “Tom is a unionist” or “Carla tried to sue us”. They make up lies about the employee’s performance. This works really well in Silicon Valley because it’s full of socially crippled literalists who hear “Carla was a low performer” and think it actually means something other than a 7-year-old saying “Carla’s a poopy face”.

    We need better laws, and we need enforcement of the laws that also exist. Further, we need guerrilla tactics. We need people, from all levels, to start anonymously leaking bad behavior by companies. We also need a way to figure out what is true and what is not. We may or may not need people to start hacking corporate emails and exposing unethical or illegal conduct toward current and former employees; hacking is illegal, so I would not voice an opinion on this under my real name. Finally, we need for the good people to protect each other. If someone gave a negative back-channel reference on Susan Fowler, I wouldn’t not-hire her for it. Instead, I’d get everything negative in writing and then send it to her, offering further to testify on her behalf. I’m unusual, though. I’m 10 years ahead of most people in realizing that Corporate America isn’t an inefficient system that “can do better” but an enemy that we’ll have to confront at some point.

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      1. End the Practice of Buying Employees’ Silence

      I found this section kind of odd. What companies should do is stop doing the thing that they chose to do to minimize the damage to themselves? Employees could decide to not take the severance, as well. It’s almost like “companies should stop giving employees an offer that employees prefer over speaking out”.

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        Yes, people being fired unfairly can choose to be impoverished. It’s almost like there’s a gross power imbalance between the two entities, and we need some legislation or collective bargaining to level the field.

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        I’ll poke one bit in particular that I disagree with: zero-tolerance policies are bullshit.

        Especially given the vague and ever-changing scope of harassment, I cannot fathom a world in which it is fair to take a bunch of young people, encourage them to spend over half their waking hours in some mythical zone of neopuritanism, and then terminate then on a whim when they run afoul of somebody that is higher-functioning than they are.

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          I very much disagree with that.

          I cannot fathom a world in which it is “fair” to take a bunch of often already vulnerable people, make it difficult for them to enter an industry in the first place, and then expect them to stay silent (and possibly quit) in case some kind of harassment happens.

          I disagree with two things in particular:

          mythical zone of neopuritanism

          To me this sounds like “boys will be boys”, which relieves people in privileged positions of the responsibility to deal with the consequences of their own actions. And also, not harassing people is just professionalism.

          If you want to date, do it elsewhere, with people who consent to being dated.

          somebody that is higher-functioning than they are

          This sounds like another get-out-of-jail-free card to me. Typically harassers are in positions of power and have a lot of privilege, but now they are “terminate[d] on a whim” because they’re young?

          Additionally, this makes harassers sound like victims, which I find very problematic.


          (I actually hope that I have somehow misinterpreted the comment.)

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            I’m pretty sure you and I are mostly in agreement. The problem arises when you look at the source material I was reacting to. For reference:

            Harassment, discrimination, and retaliation are illegal under state and federal law. There are never any excuses for covering up, for supporting, or for ignoring unlawful behavior. If a company has properly trained all employees about harassment (see #4 above), there are never any reasons to give multiple “chances” to employees who harass, discriminate, or otherwise treat their coworkers unlawfully and/or inappropriately. If, after a careful investigation, the company has determined that the employee acted unlawfully or inappropriately, the outcome should be a swift termination.

            and:

            What companies can do: institute a zero-tolerance policy to protect both the company and its employees from unlawful and/or inappropriate behavior.

            The suggested chain of events here is:

            1. Employees receive training about harassment.
            2. At some point in future, employee has cause to complain about harassment.
            3. Company investigates claim, fires harassing party as first, last, and only step.
            4. There is no step four.

            Now, there’s a lot of problems with this, right?

            First, policies such as these are kinda open-ended. You’ll notice in particular bits about “unwanted advances”…read literally and taken in concert with a zero-tolerance policy, that suggests that asking somebody out on a date either results in a date or–if people are following the letter of the rules–termination of employment. Because zero-tolerance, right? No second chances.

            Second, the author makes this appeal to the company to do the investigation. That’s no significant improvement over the existing system; had the answer been “take this shit to court or a commission or labor board”, I could get behind it…but the suggested policy is not really any different from the status quo other than saying “zero-tolerance all the time”. And you can bet your hat that the people already in positions of power doing bad things are probably not going to be found to have transgressed, the victims terminated for unrelated cause shortly thereafter, and so forth.

            Third, zero-tolerance policies as a rule hurt more than they help. They have failed with the war on drugs, they’ve failed in schools, they’ve failed in policing. One might even go so far as to observe that being able to dial retribution to match the transgression (instead of instant exile) has always been a feature, not a bug, of competent lawmaking.

            Fourth, this works well when you have people that are “professional” (whatever that means) but lacks the flexibility (because zero-tolerance means no flexibility) to handle the weirdness of people. Consider example cases:

            • Alice is an intern who really has a crush on her coworker Eve. Valentine’s Day comes and she leaves a box of chocolates on Eve’s desk with a note wishing her a good day and offering drinks after work.
            • Don is a vice president of marketing who uses his position (and corner office) to impress secretaries and frequently abuses his position to get new attractive ones assigned. Working late hours, it is not unusual that his subordinates will request a transfer after about a month.
            • Fred and Wilma are at a company all-hands meeting, and make jokes to each other about the companies new line of dongles. Their coworker Barney finds this inappropriate and complains, they admit to making the jokes when asked–though the jokes had been between each other.
            • Colt is going through divorce proceedings with xyr spouse and is stressed out about work. Xe is overheard in the stairwell one day grumbling about how everything would be easier if cis-hets all died.
            • Stewey is announcing a huge project milestone involving a successful and very tricky aerial drone maneuver. He makes the announcement while wearing a shirt his friend made for him, which is garishly tropical and covered in people wearing swimsuits, for good luck.

            Now, what do you think the reasonable action is in each of these cases? If you didn’t answer “fire them immediately” to all of them, you cannot support a zero-tolerance policy as the author suggests.

            ~

            Let me poke at your assertion here a bit:

            If you want to date, do it elsewhere, with people who consent to being dated.

            I’m not saying that it is okay to be hounded at work by people looking for a date or a spouse. That’s absurd–you’re both (all?) there to work. But do consider:

            • Folks who are not attached to family units spend over half their waking hours at work.
            • Folks (at least in tech) will often pad out their “free time” with company activities, conferences, and so forth.

            At least in the US, we’ve lost a lot of progress in tech on the fair work weak and on socialization. It is not fair to single folks to say “hey if you do this thing that comes naturally to you re: social interaction, you will be immediately fired”. There is something deeply, deeply dehumanizing about assuming that everyone in a company is some sexless human resource that needs no romantic companionship.

            Perhaps we should require that people be either ace or married and monogamous before allowing them to work for our companies, yes?

            Or, maybe, we should just recognize that people are gonna people, and maybe we shouldn’t fire them the second they express anything other than an economic interest in a coworker.

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            I’ll poke one bit in particular that I disagree with: zero-tolerance policies are bullshit.

            Zero tolerance of what?

            I agree that firing someone because he says “bitch” is bullshit. It’s making a show at the expense of some powerless fool over a nonexistent issue (a word).

            Zero tolerance of actual sexual harassment– not dirty jokes, but persistent unwanted advances coming from a person in power– I would support.

            Especially given the vague and ever-changing scope of harassment

            Sexual harassment is separate from political correctness (PC). About PC, I imagine that we agree. PC is the fake feminism of the CEO who does nothing to support women but says, “I fired someone last Thursday for making a dirty joke, so I’m Okay With God On The Women Thing”.

            terminate then on a whim when they run afoul of somebody that is higher-functioning than they are.

            That’s PC culture. Sexual harassment is a great deal more than “run[ning] afoul of somebody”, and it’s a huge problem in the corporate world. Abuses of power, in general, are an issue in the corporate world and for most part companies don’t do anything about it. Nor would they do anything about sexual harassment if there weren’t significant legal and financial incentives (namely, the threat of a major, embarrassing lawsuit) forcing them to do so.