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Mandatory Arbitration for Associates Is Trending Down

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By William Vogeler, Esq. on July 16, 2018 12:57 PM

With a push from #MeToo, BigLaw has become more transparent about sexual harassment at law firms.

Nobody is putting a spotlight on sexual harassment among lawyers -- now. That problem may take a generation to resolve.

But some large law firms are leading the way by abandoning the cloak of mandatory arbitration in hiring agreements. That means some lawyers are going to sweat when the public spotlight hits their firm.

#MeToo First

Some law firms saw the writing on the wall and made changes voluntarily. For example, Orrick, Herrington & Sutcliffe announced it was ending its arbitration agreements for employees after a story broke about Munger Tolles & Olson.

In that case, Harvard lecturer Isan Samuel wrote on a Twitter wall that summer associates at Munger Tolles had to waive their right to sue and agree to arbitrate any claims -- including sexual harassment or racial discrimination. 

"I think this is the grossest thing I've every heard," he tweeted. "Munger ought be ashamed."

It got real -- fast. As the media picked up the story, the post was retweeted nearly 600 times. The next day, Munger Tolles announced it was dropping the arbitration requirement.

More to Follow?

After reviewing its policies, Skadden Arps Slate Meagher & Flom followed. It's a good start, but there are twice as many lawyers in America than there are people in nearly a dozen states.

In any case, arbitration agreements are trending down in the United States. Law firms, on the cutting-edge of it all, are in the best position to make changes involving harassment and discrimination claims.

It may take another lawsuit or two to keep it going, however. This past term, the U.S. Supreme Court upheld arbitrations covered by the Federal Arbitration Act.

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