We convened the first meeting of the Pipeline Parity Project in response to two big news stories. The first exposed a years-long pattern of sexual harassment by prominent 9th Circuit Judge Alex Kozinski. The second revealed that major law firms were forcing their employees — including summer associates and support staff — to sign away their civil rights as a condition of employment.
A few dozen of us came together in the spring of 2018, committed to working to remedy these injustices, so that we might build a legal profession that is more inclusive and better equipped to ensure that our legal system promotes justice and equity for all.
We launched a petition on Coworker.org later that month, asking the Harvard Law School Office of Career Services to require that all employers who recruit on our campus refrain from using coercive contracts that use forced arbitration clauses, non-disclosure agreements (NDAs), or class action waivers. Over 500 HLS community members signed the petition.
Our petition also asked that Harvard issue an anonymous workplace climate survey to all students returning from summer employment, to gather key data about workplace sexual harassment that will inform our continuing efforts to end discrimination in the legal profession. Spoiler alert: Harvard has yet to agree to a climate survey.
In response to the advocacy of students around the country, 50 law schools agreed to issue a survey to every law firm recruiting on their campuses. On May 14, Yale Law School sent a letter on behalf of the law schools’ coalition asking firms to disclose whether they required summer associates to sign mandatory arbitration and nondisclosure agreements related to workplace misconduct, including but not limited to sexual harassment. “Thanks to student advocacy and an alliance between the nation’s top law schools, those arbitration agreements are about to see the light of day in the #MeToo era,” Above the Law wrote.
However, on May 21, the Supreme Court announced its decision in Epic Systems v. Lewis, confirming that individual forced arbitration contracts are indeed enforceable. While this was a devastating decision for workers across the country, it reinforced our commitment to dismantling what Justice O’Connor once called the Court’s “edifice of its own creation.” If the judiciary won’t end forced arbitration, then the public will have to.
In June, the results of the employer arbitration survey came in—and they were underwhelming. Ultimately, over 350 firms were asked to disclose their policies and practices regarding arbitration agreements for employment-related disputes. 187 employers, or just over half, even completed the survey, with no consequences for those who didn’t respond.
Using this information, the HLS Office of Career Services created several new resource pages on its website for students to more easily access information on these topics, including pages providing information on forced arbitration agreements, pro bono work at law firms, and diversity issues.
However, PPP strongly believes that merely disclosing which firms require employees to sign coercive contracts will fail to achieve our goal of ending discrimination in the legal profession. Disclosure simply places this burden on students most at risk of workplace misconduct—principally women, people of color, members of the LGBTQ community, and people with disabilities—to opt out of certain opportunities. Thus, our fight continued.
We launched our Twitter account, which has been a critical tool in helping us spread the word about what we’re working on. Read our first tweet!
Although we didn’t know it at the time, mere weeks after reporting to law schools that it didn’t use forced arbitration, Venable LLP sent an email on July 17 to all its employees indicating that their continued employment at the firm was conditional on their acceptance of a forced arbitration provision in their contract. An entire class of students relied on this information for the upcoming recruitment season, not knowing that they would be out of a job if they didn’t sign away their civil rights.
During the HLS Early Interview Program in August, students, including Kate Peiffer and Steven Palmer, relied on information publicized by PPP in making decisions. “I made sure to check the results of the survey and only to bid on firms that did not have non-disclosure agreements or mandatory arbitration agreements in their contracts,” Palmer said. “PPP ensured that I and my classmates had information on the effects of mandatory arbitration and NDAs in employment contracts so that we could make this decision from an informed perspective,” Peiffer explained.
When D.C. Circuit Judge Brett Kavanaugh was nominated to the Supreme Court, it threw into relief the vital importance of what we are fighting for. In September, multiple reports that Kavanaugh committed acts of sexual violence, as well as the allegations that he selected women clerks based in no small part on their looks, made it all the more important that we develop accountability mechanisms for misconduct in the judiciary.
Furthermore, now-Justice Kavanaugh began his career as a clerk for then-Judge Kozinski, although he (dubiously) claimed to know nothing of Kozinski’s pervasive and often public sexual harassment. Both were known feeder judges for recommending clerks to Kavanaugh’s former boss Justice Anthony Kennedy, who perhaps not coincidentally hired six times as many male clerks as female clerks during his time on the bench. Kavanaugh also began his career at Kirkland & Ellis, which at the time had used forced arbitration for a decade to keep its employees silent about potential claims of sexual harassment and discrimination.
It has never been more clear that these issues are deeply interrelated. On September 20, several of our members published an article in the Harvard Law Record entitled, “What Is HLS Doing About Professor Brett Kavanaugh?” The article was viewed over 11,000 times and received national news coverage.
On September 24, we led hundreds of HLS students in a walkout to protest the failure of both the Senate and our law school to conduct a full and fair investigation into the sexual assault allegations against Kavanaugh. We asked students to show solidarity with Dr. Christine Blasey Ford, Deborah Ramirez, other survivors, and all people whose bodily autonomy would be jeopardized by a Justice Kavanaugh on the Supreme Court.
As if September weren’t busy enough, we also submitted a letter to the Federal Judiciary Workplace Conduct Working Group, urging “the Judicial Conference [to] adopt reforms regarding the role and responsibilities of law schools in reporting and responding to complaints of harassment and other abusive workplace practices” and providing several specific recommendations for reform.
On October 1, students were informed via a one-sentence school-wide email that Kavanaugh could “no longer commit” to teaching at HLS. Above the Law called it “the gentleman’s way out…the kind of face-saving maneuver that is often afforded white men.” We considered it an insufficient response but a small victory. On October 6, Kavanaugh was confirmed to the Supreme Court.
On October 30, we hosted an open community conversation at HLS called “What is HLS Doing About Harassment, Assault, and Discrimination?” We invited students to talk about harassment, assault, and discrimination both on our campus and in the legal profession at large in order to identify new issues, priorities, and solutions.
Also on October 30, the Judicial Conference of the United States held a public hearing on proposed changes to its procedures for handling complaints of sexual harassment and other forms of discrimination. Several of our student representatives attended the hearing, and we submitted an open letter on behalf of law students that asked the Judicial Conference to add a climate survey, an informal reporting mechanism, and a national, centralized reporting office to its recommendations.
On November 12, we kicked off our #DumpKirkland campaign by releasing a copy of the firm’s forced arbitration agreement. We chose Kirkland as our first target because it is the largest law firm by gross revenue in the world and had been using forced arbitration for over ten years—and yet it didn’t even respond to the law schools’ employer survey. Kirkland began forcing its employees to sign away their civil rights after an associate at another big law firm sued his employer for discrimination based on his sexual orientation.
On November 13, we submitted a comment letter to the Judicial Conference of the United States on its proposed changes to the Code of Conduct for U.S. Judges and to the Judicial Conduct and Disability Rules. Our letter called for the Proposed Rules to include: clearer definitions of harassment, equal procedural rights for complainants, opportunities for informal resolutions, accountability measures, a national reporting avenue, and for the Judicial Conference to conduct a climate survey.
On November 21, the day before Thanksgiving, Kirkland announced that it was doing away with mandatory arbitration agreements for associates and summer associates, but not for all its employees. Above the Law wrote, “While the firm’s announcement is couched in terms of a periodic review of Kirkland’s practices, the timing sure doesn’t feel like a coincidence. As soon as they began receiving pressure, they caved.”
Shortly afterwards, Sidley Austin dropped forced arbitration for all of its employees, not just associates. Many other firms eventually followed suit, quietly updating their policies before they became the next hashtag.
But one firm that didn’t was DLA Piper. On November 28, we launched our #DumpDLA campaign, urging students not to accept jobs with DLA Piper or any firm that makes any of their employees sign coercive contracts. DLA responded shortly thereafter defending its use of forced arbitration, an especially embarrassing move in the face of an emerging consensus within big law that arbitration should not be forced on its employees.
Also on November 28, the D.C. Circuit announced that it was implementing changes to its policies for responding to workplace misconduct, becoming the first Circuit to adopt comprehensive reforms since Kozinski’s sexual harassment of clerks became public. The D.C. Circuit’s changes reflected our feedback and notably included a workplace environmental climate survey, law clerk and employee advisory groups, and critical accommodations for employees who experience harassment.
On December 3, women’s law associations from law schools across the country announced that they would no longer accept any funds from law firms that require employees to sign mandatory arbitration agreements or refuse to disclose in future surveys whether or not they do so. Law students from Yale, Stanford, Penn, Berkeley, Harvard, Chicago, Cornell, and Michigan signed onto the statement, which read in part: “We know that many law students have already committed to spending next summer or year with these firms, and we understand that those choices are complex and personal. We hope that using our collective voices to oppose pernicious employment practices will ensure that future students do not have to weigh the harm of signing a mandatory arbitration agreement when deciding where to work.”
On December 7, Kirkland & Ellis finally announced it was dropping forced arbitration for all of its employees, not just associates. We took on the biggest law firm in the world—and we won! It would have been nice for them to make this announcement before our exam period started, but we’ll take it.
On January 1, Law360 featured our work in an article entitled, “How #MeToo Will Keep Shaping the Legal Industry.” They wrote, “As the newest entrants into the profession and highly desirable job applicants, they believe they wield an unusual amount of power and aren’t hesitant to use it.”
On January 17, we hosted a lunch talk at HLS called “Forced Arbitration and Your Future,” featuring civil rights lawyers Kalpana Kotagal and Deepak Gupta. Kotagal and Gupta discussed their work fighting for worker and consumer rights and explained how law firms use forced arbitration, both for their own employees and on behalf of their clients’ employees. “There’s a fine-print conspiracy against you, and it’s in all your contracts,” Gupta said at the event.
On January 25, Stanford Law students Lauren Border and Emily Hayes wrote a guest post for our website on how to negotiate forced arbitration provisions out of your employment contract, including sample language that students can send to employers. “You have the most negotiating power with a law firm when you have received an offer and are deciding to accept or decline it,” they wrote.
On February 4, we launched our #DumpVenable campaign after it was revealed to us that Venable changed its policy to require forced arbitration after responding to the law schools’ employer survey, deceiving an entire incoming class of law students. Although the firm made sure to note in its policy that “these documents are confidential and are not to be released or distributed outside Venable,” we didn’t think the fact that Venable forces its employees into arbitration should be a secret—so we leaked them.
Also on February 4, we joined a collection of HLS student-led organizations to sign an open letter affirming our strong support for Harvard’s participation in the Clerkship Hiring Pilot. We believe the success and expansion of the plan are the necessary first steps in addressing systemic inequities in access to clerkship opportunities. An op-ed in the Harvard Crimson entitled, “It’s Time to be Part of the Solution, Not the Problem, with Judicial Clerkships,” summarized the issue: “There is no doubt just how discriminatory the clerkship system can be, from rampant unchecked sexual harassment to persistent gross disparities in the representation of people of color, women, and other marginalized groups. The new national clerkship hiring pilot plan is essential to creating an equitable environment for students interested in clerking and combating the lack of diversity in the judiciary.”
On March 29, we launched our open letter calling on the National Association for Law Placement to add two questions to its Directory of Legal Employers: one inquiring into firms’ use of forced arbitration and NDAs for summer and first-year associates, and one asking whether firms requires any non-lawyer employees to sign a contract containing forced arbitration or an NDA. Over 900 supporters (and counting!) have signed the letter, which we have sent directly to NALP.
This was part of our larger campaign to ramp up the pressure on firms holding out on their use of forced arbitration—namely, DLA Piper and Venable. Despite the growing consensus that forced arbitration hurts workers, DLA Piper has proudly stood by the practice. Meanwhile, Venable LLP has refused to acknowledge their use of forced arbitration, despite the fact that we literally have a copy of their employment contract. Since these firms clearly don’t get it, we, along with Georgetown Law students, distributed leaflets about the harms of forced arbitration in front of DLA Piper’s office in Boston and Venable’s office in DC.
As Law360 reported, we threw ourselves a first birthday party to celebrate a year’s worth of work to change the legal profession! If our second year is anything like our first, we’ll have even more to celebrate next year.