Open Letter to Warner Bros. CEO Ann Sarnoff: Stop Silencing Employees
Dear Ms. Sarnoff:
I am writing this open letter because you have the power to address the issues of fairness and justice that are currently being denied to employees at Warner Bros. Specifically, as a former employee of TMZ and TooFab — which are produced by a Warner Bros. subsidiary — I have been told that I am required to pursue my claims of gender discrimination and retaliation through arbitration, a private, confidential forum that is inherently unfair to employees who try to stand up for their legal rights. I am asking you to release me and all employees who work for Warner Bros. from this burdensome restriction and allow us to pursue our claims in open court.
Earlier this week, BuzzFeed News reported that 23 former TMZ employees (and one current employee) said that TMZ perpetuates a discriminatory workplace culture in which misogyny, racism and verbal abuse run rampant. The current employee described the culture of TMZ as an “unchecked abuse of power,” while one former Warner Bros. employee said that there is a lack of Human Resources oversight from your company when it comes to complaints of discrimination. All of this is wholly consistent with my experience, which is why I am writing to you today.
It is widely known that the entertainment world can be cutthroat, especially for women. But I refuse to accept that women who work at TMZ should expect to be subjected to horrific discrimination and abuse. Such a blasé attitude only serves to victim-shame and, like mandatory arbitration, allows companies like Warner Bros. to evade accountability and sweep institutional workplace discrimination under the rug. We, as an industry, must hold ourselves to a higher standard, and by eliminating mandatory arbitration agreements, Warner Bros. has a real opportunity to show its employees and the public that it is committed to women’s rights.
Background on My Claims
On August 25, 2020, I filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), detailing what happened to me during my nearly five years of working at TMZ and TooFab. As my EEOC Charge makes clear, the company has fostered a toxic and misogynistic culture under the leadership of Harvey Levin; my female colleagues and I were routinely belittled and abused by our male coworkers and supervisors, held to more stringent standards than our male colleagues, excluded from business and social interactions in which only male employees participated, denied opportunities for growth and advancement and retaliated against for complaining about gender discrimination.
I tried to stand up for myself and my female coworkers by filing multiple complaints of discrimination, but Warner Bros.’ HR consistently made excuses for my male coworkers’ demeaning behavior. Instead, TMZ and TooFab ultimately unlawfully retaliated against me by terminating my employment. Now, because of my mandatory arbitration agreement that I was forced to sign as a condition of my employment, I am being unjustly denied the opportunity to assert my legal rights in open court before a jury of my peers.
According to the BuzzFeed report, I am not alone in this injustice. Another former TMZ employee, Ryan Naumann, filed a complaint with the EEOC in 2014 after Levin allegedly outed him as gay. Taryn Hillin, another former employee, had her gender discrimination case forced into arbitration after she came forward with allegations of abuse by Evan Rosenblum, who to this day continues to work at TMZ as an executive producer. Six other former employees said they went to HR to complain about mistreatment. How many more will experience mistreatment at TMZ only to find themselves muzzled by forced arbitration?
On September 4, 2019, just days after you became CEO, you told employees in a company-wide town hall that your management style was based on the values of “transparency, honesty and integrity.” I hope that is true. But Warner Bros. cannot truly claim to uphold these values if the company and its subsidiaries continue to silence employees through oppressive arbitration agreements.
Mandatory Arbitration Unfairly Tips the Scales in Favor of Employers
Mandatory arbitration agreements unfairly prohibit employees from accessing the public court system, which was created and developed to uphold fairness and justice. These agreements attempt to thrust such claims out of the public view and into arbitration, a secretive, quasi-judicial forum where a claimant’s rights are severely limited and diminished.
The unfairness of arbitrations has been widely reported. Mandatory arbitration often produces outcomes to the disadvantage of employees and the advantage of employers — which is surely why Warner Bros. and TMZ/TooFab use them. Arbitration suffers from due process problems that advantage the employers who impose mandatory arbitration on their workers. Arbitrators, who are paid by the employer, are inherently biased and far less likely to side with the employee than an impartial jury. Arbitration also lacks numerous procedural safeguards that are automatic in court.
According to The New York Times, the rules of arbitration “tend to favor businesses, and judges and juries have been replaced by arbitrators who commonly consider the companies their clients.” One California appeals court judge even went so far as to say that “[p]rivate judging is an oxymoron . . . This is a business and arbitrators have an economic reason to decide in favor of the repeat players.” The Times also interviewed more than three dozen arbitrators who said that they felt beholden to employers out of fear of losing business. One arbitrator in Los Angeles accurately summed up how employees are inherently at a disadvantage: “Why would an arbitrator cater to a person they will never see again?”
For these reasons and surely others, Congress has sought to outright ban mandatory forced arbitration in the employment context. In 2019, the House passed the Forced Arbitration Injustice Repeal (FAIR) Act, which would prohibit companies from requiring workers to resolve legal disputes in private arbitration. Representative Pramila Jayapal (D-Wash.) explained that “[f]orced arbitration doesn’t give . . . workers the full protection of the law. It is a perpetually rigged deck against the most vulnerable party in the dispute.” Unfortunately, the Senate has yet to vote on the FAIR Act.
Given that arbitration is inherently unfair to employees and biased toward employers, it may not come as a surprise to you that after I retained counsel and informed Warner Bros. that I would be proceeding with my claims, the immediate response was to inform me that my employment agreement contains an arbitration agreement. But more than that, I was threatened. I was threatened that if I were to in any way speak publicly about my experiences with discrimination, I would face “substantial liability” for being in breach of the arbitration agreement. The arbitration agreement was literally used to silence me.
Warner Bros. Has an Opportunity to Be a Trailblazer for Workers’ Rights
Ms. Sarnoff, I am asking you to stand up as a corporate leader and join the fight for employees’ rights. Many large corporations have taken a stand against forced arbitration, including Uber, Google, Facebook, Wells Fargo, Lyft, Slack, Airbnb, Skadden Arps Slate Meagher & Flom LLP, Sidley Austin, Kirkland & Ellis LLP and Orrick, Herrington & Sutcliffe LLP.
When Microsoft ended forced arbitration at the company in 2017, it said that “[t]he silencing of people’s voices has clearly had an impact in perpetuating sexual harassment.” Unfortunately, so far, no major player in the entertainment industry has publicly stepped up and done away with these blatantly oppressive legal tactics. Warner. Bros is well-positioned to disrupt that status quo.
Ending forced arbitration for all Warner Bros. employees would send a powerful signal across the entertainment industry that the company is a trailblazer for workplace justice. The #MeToo movement has taught women around the world that if we band together, we have the power to stand up to workplace abuse and effectuate lasting change. However, as long as companies like Warner Bros. continue to impose arbitration agreements onto their employees, our ability to eliminate systemic barriers to justice for victims of workplace misconduct remains stifled.
I ask that you publicly take a stance on the side of employees’ rights and declare that Warner Bros. and its subsidiaries will no longer enforce its arbitration agreements for claims of discrimination, retaliation and a toxic workplace culture. Only when former and current employees are free to have a voice can there be real and legitimate “transparency, honesty and integrity” at Warner Bros. Until then, it will just be lip service.
I look forward to your response, and sincerely hope that I am not ignored.
Bernadette (Bernie) Zilio