#MeToo Update: Fighting Forced Arbitration at Best Buy

#MeToo Update: Fighting Forced Arbitration at Best Buy
Survivor Sarah Tremblay was a Best Buy “Geek Squad” employee until 2018, when she was fired for complaining about a customer who sexually assaulted her. (Mike Mozart / Flickr)

Best Buy boasts a diverse and inclusive culture. The company claims to be working to “close the gender gap in STEM” by providing a “great workplace for women” and a “culture of gender equality from local stores to our corporate campus and beyond.”

Yet, to get a job at Best Buy, the company forces employees to forfeit their legal right to sue for sexual harassment—even in New York state, which in the wake of #MeToo passed a law in 2018 banning forced arbitration.

But sexual assault survivor Sarah Tremblay and her fierce feminist lawyer Susan Crumiller are fighting back. (Crumiller’s six-attorney law firm has the tagline “The Feminist Litigation Firm.”)

#MeToo Update: Fighting Forced Arbitration at Best Buy
Susan Crumiller is the founder of Crumiller P.C., a feminist litigation firm dedicated to fighting gender and pregnancy discrimination in the workplace. (Crumiller / Marc Goldberg)

Tremblay was a Best Buy “Geek Squad” employee providing repair, installation and setup services on all kinds of tech. She worked at two stores in Long Island, N.Y., until 2018, when she was fired for complaining about a customer who sexually assaulted her, says Tremblay in a lawsuit she filed last month.

Tremblay had a long record of excellent performance in her job at Best Buy. She’d even been included in a group of retail employees being fast-tracked for corporate roles. But as the only woman on a team of 10 Geek Squad employees, Tremblay often experienced sexual harassment from coworkers and customers.

One co-worker made repeated graphic sexual comments, yelling at her about “f — ing” him and bombarding her with comments about “deep-throat blowjobs” and “skull-f — ing.” She complained to management, who responded with “reactions ranging from mockery to outright indifference.”

Tremblay was also harassed by customers, some of whom she describes as gamers—guys who are part of the “the pervasive misogynistic culture which perpetuates and glorifies offensive oversexualization, sexual harassment and sexual assault of women in online video-gaming communities.”

On one occasion, in 2018, while helping a man with his laptop, he suddenly grabbed her and forced his mouth onto her neck, “slobbering on it.”


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When she reported the assault, her supervisor suggested she take a minute to compose herself before heading back out onto the store floor. He didn’t summon security or take any other kind of action, says Tremblay.

A few hours later, the man returned to the store, snuck up behind her, and whispered, “I love you” in her ear.

When Tremblay told her supervisor again what happened, he laughed, says Tremblay. “People are always trying to hug you; I didn’t think it bothered you so much,” he said, according to the complaint.

Tremblay then tried to get help from the store’s general manager.

“He told me that it’s a hazard of working with the public,” Tremblay told Ms.

“Their position was, ‘How are we supposed to control the behavior of customers?’ which does indeed sound logical at first,” Tremblay’s attorney Crumiller told Ms. “Except that they could very easily identify, and did identify, shoplifters and other problem customers that they banned from the store. Even one guy who was distributing religious pamphlets, they identified and banned him from the store.

“But the guy who slobbered on Tremblay’s neck and said, ‘I love you,’ he kept coming back. They had these very easy steps that they didn’t care to take.”

In the male-dominated field of tech, women experience high rates of sexual harassment. But then pair that with the realities of retail work, where “the customer is always right.” According to research by the Center for American Progress, women experience particularly high rates of sexual harassment in retail jobs. The toxic mix makes women working in retail tech jobs particularly vulnerable to sexual harassment and assault. Then add to that the male gamer customers at Best Buy.

“From the summer of 2017 to November of 2018, that year was so, so damaging. I still have nightmares,” Tremblay told Ms.

After the assault, while Tremblay was at corporate headquarters in Minneapolis for a training, she reported the harassment to Best Buy’s central human resources department.

“They didn’t even pretend to try to want to help her,” says Crumiller. “Then, they did pretend for about one day, while she was at corporate headquarters. They said all the right things. And the very day she got back to the store, they fired her. And the firing was so shamelessly pretextual.”

“She suffered so gravely,” Crumiller continues. “She just wanted to do her job!”

After she was fired, Tremblay wanted to sue—but her employment contract with Best Buy had an arbitration clause that requires employees to go into secret arbitration with an arbitrator hired and paid by the company.

Believing that she wouldn’t get a fair resolution of her case in arbitration, Tremblay went right to the top. In July, she wrote an open letter on Medium to Best Buy CEO Corie Barry, seeking to be released from the forced arbitration clause. The 44-year old Barry is Best Buy’s first female CEO and one of only 27 female CEOs at Fortune 500 companies. Tremblay appealed to Barry’s publicly-stated commitments to “nurturing a diverse and inclusive environment” and “empower more girls to go into STEM fields.”

“Best Buy’s current forced-arbitration policy is not in alignment with these values, as it functions to hide the pervasive sexual harassment that keeps women out of tech,” said Tremblay in the letter.

“It is my hope that you will recognize that forcing employees like me into arbitration, rather than court, deprives us of an opportunity to seek justice, and perpetuates discrimination against women at Best Buy.”

“Without public accountability, Best Buy has no real incentive to change its practices.”

“As a victim, being silenced is hard, on a personal level,” wrote Tremblay. “But to think that my efforts could have no benefit to future female Best Buy employees, who may suffer exactly as I have suffered, is unspeakably disheartening. It is the ultimate disempowerment.”

The day after Tremblay published her open letter, New York State Supreme Court Justice Louis L. Nock issued a decision in a case against Louis Vuitton invalidating mandatory arbitration clauses in discrimination cases under the 2018 New York law banning mandatory arbitration clauses in employment contracts, disagreeing with an earlier federal court decision ruling that the law was not enforceable because federal law allowed mandatory arbitration.

So Tremblay and Crumiller decided to file a lawsuit against Best Buy in state court.

“I’m just very lucky to be able to have a voice,” says Tremblay, “because I didn’t have a voice during that time. I know what that feels like. I know what it’s like when you tell yourself ‘it’s not that bad’ or ‘I need this paycheck’ or ‘I can’t do anything about it.’ And how you have to belittle your own experiences in order to just keep going every day.”

“I want anybody who’s going through it or has gone through it to know that the things that are happening to you are not okay,” says Tremblay. “And even if you think it’s not that bad, it is that bad because it’s a systemic thing. It’s not just one action that’s happened to you. It’s the actions that are happening to all of us.”

Tremblay’s open letter worked: Best Buy’s lawyer has notified Tremblay and Crumiller that the company is agreeing not to pursue arbitration.

#MeToo Update: Fighting Forced Arbitration at Best Buy
At the Women’s March in Philadelphia in 2018. (Rob Kall / Flickr)

In addition to suing Best Buy, Tremblay is urging federal lawmakers to take action​.​

Last September, the House passed the FAIR Act​ ​to end forced arbitration in sexual harassment cases, but the Senate has yet to act on the issue. Tremblay recently sent a letter to ​Senator Kirsten Gillibrand asking her​ to reintroduce ​her​ Ending Forced Arbitration of Sexual Harassment Act​​ in the Senate.  

#MeToo turned the world upside down, and improved laws in many states. But it’s now up to brave women like Tremblay and Crumiller to do the hard work of using these laws to challenge sexual harassment in the workplace and fighting for even better laws. Then maybe things will finally change.


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About

Carrie N. Baker, J.D., Ph.D., is a Professor in the Program for the Study of Women and Gender at Smith College. Her 2007 book The Women's Movement Against Sexual Harassment won the National Women’s Studies Association Sara A. Whaley Book Prize. Her second book, Fighting the U.S. Youth Sex Trade: Gender, Race, and Politics, tells the story of activism against youth involvement in the sex trade in the United States between 1970 and 2015. Baker is the President of the Abortion Rights Fund of Western Massachusetts.