TEXT ON SCREEN: In collaboration with Type Investigations
MARLENE JUPITER (FORMER WALL STREET SR. VICE PRESIDENT): I wanted to go to Wall Street because I was basically lower middle class at the time and I wanted a taste of the good life.
NARRATION: Marlene Jupiter started working on Wall Street in the early 1980s.
MARLENE JUPITER: You knew that you were going into a mans world. But I loved Wall Street. It had that excitement of being part of the future.
NARRATION: In just over a decade she became one of the top performers at her firm, earning close to a million dollars a year.
MARLENE JUPITER: I became a senior VP and then I landed very huge hedge funds accounts and that was when really the lions came on.
NARRATION: According to Jupiter, some of the male brokers began making anti-semitic comments and spreading false, sexual rumors about her that got worse the more that she earned.
MARLENE JUPITER: They would call me a chick with a dick. They would deliver cakes with dildos on them. That was like, you know, supposed to be funny. And then when I was on vacation I get phone calls that theyre trying to sabotage my customers basically theyre telling you that youre not really welcome at the party. Youre a woman. Youre not one of us.
CLIFF PALEFSKY (EMPLOYMENT LAWYER): Wall Street was a hotbed of sex harassment, of gender discrimination. The environment was as bawdy and as sexualized as any in this country.
SUSAN ANTILLA (REPORTING FELLOW, TYPE INVESTIGATIONS): The name of the game was to make the women feel like they didnt belong there. And that played out in a lot of ways. Women would come back from maternity leave and lose their jobs. Women would try to get a promotion from sales assistant to broker, and they werent allowed to do it, but the guys could. And then at the other extreme, you had sexual assault and sexual harassment. It was almost like a weapon to show them, you know, you shouldnt be here. And if youre going to be here, were going to make you really, really uncomfortable.
MARLENE JUPITER: Being bullied destroys your confidence, it destroys everything about you. And I would go to human resources and it would go away for a few months and then it would come back. At one point, I was getting physically sick. And thats when I decided to leave. I couldnt function anymore.
SUSAN ANTILLA: She quit. And she wasnt planning on doing anything. She wasnt going to sue them. But then she had a great job lined up. The employer called her old trading desk to ask about her and they trashed her, and she didnt get the job. And thats when she said, Ive had enough.
NARRATION: But for brokers like Jupiter, taking an employer to court wasnt an option. Because of a small clause in their licensing paperwork.
CLIFF PALEFSKY: In the nineties everyone in the securities industry was required to register with the SEC. In theory, it was to make sure that they were hiring people without crimes in their background. But one of the boxes you had to check said that you agreed to arbitrate any claim you had against your employer. So you had no choice. You could not work in the industry without waiving your right to bring a claim in a public court.
NARRATION: Arbitration was designed to avoid the courthouse by swiftly resolving conflicts before a private panel.
CLIFF PALEFSKY: The securities industry had set up its own arbitration system which was run by them and the purpose of the system was to protect it from liability. It was all industry insiders, many of whom were not even lawyers.
NARRATION: The vast majority of the industrys arbitrators were white, male and over 60, reinforcing what many felt were deeply rooted institutional biases.
MARLENE JUPITER: I thought I was going to win. I had witnesses that came through the arbitration. But I lost. If I had gone to court, I am sure I would have won.
NARRATION: Jupiter wasnt alone. At the time, the majority of women who brought harassment cases to arbitration on Wall Street lost. And it happened behind closed doors.
SUSAN ANTILLA: When you go to arbitration, there are no public documents filed. There are no reporters or members of the public allowed in the room to watch. And it allows their rainmakers to be repeat offenders because nobody ever finds out.
NARRATION: Susan Antilla was one of the first journalists to report on the pervasive sexual harassment and discrimination on Wall Street.
SUSAN ANTILLA: Its all about silence. Its all about keeping these cases quiet.
NARRATION: But in 1996 that silence was broken.
ARCHIVAL (ABC NEWS, 20/20, 4-4-97):ANCHOR: Tonight, the lawsuit that everyone on Wall Street is watching. Outrageous claims about men behaving badly at Smith Barney.WOMAN: Women were referred to as bitches and whores.
NARRATION: A group of Wall Street women joined together in a class action lawsuit allowing them to circumvent arbitration and bring their cases into court.
ARCHIVAL (CNBC, 1997):ANCHOR: The potential class action suit is extremely important because it aims at much more than collecting damages. The 23 women are trying to bring down the arbitration system, the pillar of employee relations on Wall Street.
SUSAN ANTILLA: It was brilliant. They got the cases filed in court. And all of a sudden, they started hearing from other women all around the country. The coverage of that case changed everything because the brokerage firms couldnt hide anymore. It got broadcast coverage. It got print coverage. Everybody was watching. And thats the difference. You never saw that about an arbitration case.
ARCHIVAL (ABC NEWS, 20/20, 1997 ):WOMAN: They would never treat men the way they have treated us.
ARCHIVAL (ABC NEWS, 20/20, 1997):WOMAN: He said that he wanted to pull my stockings down and sit me on his lap.
ARCHIVAL (ABC NEWS, 20/20,1997):LISA MAYS: I was up against this wall. I was trying to get free from him, and I just.he was my friend.
NARRATION: Lisa Mays was among the first women to join the class action suit against Smith Barney the assault at her workplace still haunts her today.
LISA MAYS (PLAINTIFF, MARTENS V. SMITH BARNEY): He lifted up my skirt and started to put his hands like underneath my tights to pull down my tights and then luckily something happened in the, uh, the front door clicked. And he walked away from me like nothing happened. Like nothing had just occurred.
NARRATION: Mays reported the incident to human resources. But she says her complaint was ignored, and her attacker stayed on the job.
LISA MAYS: Then when I found out about the lawsuit and the company was calling it an isolated incident, I was like, Its not. I have to get involved. I have to call these lawyers. And they couldnt believe what happened to me.
NARRATION: Nearly two thousand women joined the lawsuitand other suits soon followed.
ARCHIVAL (CBS, 2-7-98):PAULA ZAHN: The cloud hangs over Americas financial community. Almost every major firm faces or has faced a sexual discrimination charge.
SUSAN ANTILLA: It really was a Me Too Movement. Oh yeah, that happened to me as well, and it was contagious.
NARRATION: In the wake of the publicity, firms implemented programs to address sexual harassment and discrimination concerns.
ARCHIVAL (CNN, 1997):NEWS REPORT: Under the agreement, Smith Barney will establish a 15 million dollar fund to train and recruit more women and minorities.
SUSAN ANTILLA: There was a moment in time, after those Wall Street cases were brought, when there was such optimism. And people really thought that change was going to happen across the board, with pay, with promotion, with everything.
NARRATION: The Securities and Exchange Commission even eliminated the requirement to arbitrate over discrimination claims. But many firms inserted the requirement into employee handbooks and contracts, creating a roadmap that other industries followed.
CLIFF PALEFSKY: Wall Street was the model that management lawyers pointed to, to convince their clients that it was time to start compelling arbitration of discrimination claims. And they literally produced papers that said, Look at what the securities industry has been able to do with their sex harassment claims. And they would list, Sex harassment claim, claim dismissed; Sex harassment claim, claim dismissed; Discrimination claim, claim dismissed And that was a marketing device, and very effective because its all true.
SUSAN ANTILLA: Back when the women on Wall Street were suing in the mid-1990s, seven percent of U.S. companies then had mandatory arbitration. And today, its more than half.
NARRATION: That trend has become a flash point in the latest fight against harassment and discrimination.
ARCHIVAL (CBS, WUSA, 11-21-17):NEWS REPORT: The Me Too movement is taking down big names for sexual assault and sexual harassment.
ARCHIVAL (CBS NEWS, THIS MORNING, 11-13-17):NEWS REPORT: Hundreds of people on Sunday brought their fight against sexual violence to the heart of Hollywood.PROTESTORS: Rise up for the women of the world!
NARRATION: From secret settlements to confidentiality clauses, theres been a public reckoning on how victims stories have been kept quiet for so long.
ARCHIVAL (ABC NEWS, AMERICA THIS MORNING 7-7-16):ANCHOR: Former Fox News anchor Gretchen Carlson is suing her former boss, Roger Ailes, claiming she was let go for refusing his sexual advances.
GRETCHEN CARLSON (FORMER FOX NEWS ANCHOR): I did not even realize how pervasive this epidemic of sexual harassment and forced arbitration was in our society until after I brought my case forward and then hundreds and then thousands of women started reaching out to me and their stories had never been told a lot of them because of arbitration.
NARRATION: Carlson herself was bound by arbitration, but her lawyers filed a court suit anyway. In the end, she settled her case and signed a non disclosure agreement.
Today, she has been helping to gather support for legislation that would prohibit mandatory arbitration in cases involving sexual harassment.
GRETCHEN CARLSON: Arbitration completely perpetuates harassment in the workplace. There are no appeals. You dont get the same amount of witnesses. Its secret. You normally get a much more paltry settlement than you would if you were an open court system.
If the majority of these cases arent going to an open jury process, then how do we make progress as a nation on building upon case after case after case, thats how our legal system works.
ALAN KAPLINSKY (ATTORNEY): The courts are overwhelmed with litigation. There are many courts in the country that just cant make a dent in getting through their docket.
NARRATION: Attorney Alan Kaplinsky is a leading advocate for the use of arbitration in consumer and employment disputes. He says the process has an important role to play.
ALAN KAPLINSKY: Arbitration, its a lot less costly than going to court. Its a lot faster. Its extremely efficient and its a process that is time tested. There are always going to be anecdotes, one-off stories that people are going to be able to tell. But I havent seen actual data showing any connection between arbitration and the increase of wrongdoing by employers. Theres just no connection.
NARRATION: Today, a new generation of workers is demanding an end to mandatory arbitration.
ARCHIVAL (NBC, NIGHTLY NEWS, 11-1-18):LESTER HOLT: Tonight, a massive walkout across the country and around the world of Google employees revolting over the treatment of women, including the handling of workplace sexual harassment.
ARCHIVAL (CNBC, 11-1-18):NEWS REPORT: The employees have a list of demands including an end to forced arbitration, and a commitment to end pay and opportunity disparity.
ARCHIVAL (NBC, 11-1-18):TANUJA GUPTA (AT GOOGLE WALKOUT): We demand structural change!
TANUJA GUPTA (GOOGLERS FOR ENDING FORCED ARBITRATION): The Google walkout wasnt just about sexual harassment. It was about this large structural imbalance of power that has caused inequity in a number of areas. We wanted anyone who was discriminated against for race, or wrongfully terminated to also be protected.
NARRATION: And some of these demands are starting to be met.
ARCHIVAL (CBS, 5XPIX, 11-9-18):NEWS REPORT: Google has released a new policy ending forced arbitration in cases of sexual harassment and assaultits in response to recent protests.
ARCHIVAL (BLOOMBERG, 11-13-18):NEWS REPORT: Other tech companies are taking notice, like Facebook which said they would do the same, and on Monday, AirBnb said it was ending forced arbitration not just for sexual harassment but for all cases involving discrimination.
TANUJA GUPTA: All of this is about fighting for equity. Its about true equality to know that whether its about being free from harassment, being free from stereotypes, from inadequate pay. All of that has to change in order to be able to say, yes, you and I are truly equal in the eyes of the law.
NARRATION: Change is happening, albeit slowly.
SUSAN ANTILLA: If you look at Wall Street today, you do see less harassment, you certainly see less blatant stuff happening, but you still see pay disparities, you still see women being pushed out.
NARRATION: Two decades after the sexual harassment cases of the 90s, only an estimated 17 percent of brokers are women.
SUSAN ANTILLA: My big concern about Me Too is that well see a backslide when you dont see coverage of this as much anymore. So theres a real lesson to be learned from those early cases.