The Problem of Sexual Harassment and Forced Arbitration

Former Fox News host Gretchen Carlson sued Fox Chairman and CEO Roger Ailes for sexual harassment, alleging unwanted sexual advances at work, and career-demolition when she refused him. Her lawsuit details disgusting, alarming behavior: Ailes allegedly told her that she should “have had a sexual relationship a long time ago” with him and, when she refuted his advances and complained about it, he “ended her career at Fox News.”  But Ailes has fought back, claiming that an arbitration clause Ms. Carlson signed with Fox News prevents her from suing him in court.

As New York Magazine’s Gabriel Sherman writes, Carlson wasn’t the first woman to accuse Ailes of this inappropriate, appalling misconduct; his biography of Ailes, The Loudest Voice in the Room, included interviews with several women who said “Ailes had used his position of power to make either unwanted sexual advances or inappropriate sexual comments in the office.”

Nancy Erika Smith, Carlson’s attorney, told Sherman that in the days since Carlson went public, over a dozen women have reached out to describe similar experiences with Ailes, revealing a pattern — demanding sexual favors in exchange for professional advancement, and putting a stop to the careers of women who did not oblige — dating back as far as the 1960s. Six of the women, two on the record and four anonymously, told their stories publicly to New York Magazine for the first time.

Gretchen Carlson sought her day in court, her right under the law, and the public nature of her lawsuit empowered other people who had experienced illegal sexual harassment to come forward.  Yet, Ailes’s first move in response to her case is a request to the court to compel arbitration.

The New York Times highlighted why forced arbitration clauses in employment contracts are detrimental to employees enforcing their rights under the law.

“While arbitration is normally a secretive process, a typical plaintiff involved in arbitration would at least be able to speak publicly about his or her case. But Ms. Carlson, a former anchor who was let go last month, had a contract that makes the process even more secret, stipulating that ‘all filings, evidence and testimony connected with the arbitration, and all relevant allegations and events leading up to the arbitration, shall be held in strict confidence.’”

Ending forced arbitration has been a priority for Correia & Puth and other employee advocates for many years, and has increased in importance in recent years following Supreme Court decisions that paved the way to further privatize employees’ rights. Some members of Congress are trying to fix the problem. Introduced by Senators Leahy and Franken, the Restoring Statutory Rights Act would amend federal law to make it unlawful for employers to impose arbitration on employees except when the employees knowingly and voluntarily agree to arbitration after the problem arises, or in a collective bargaining agreement. The legislation would help ensure that employees are not blind-sided when they face an issue at work.

Visit the National Employment Lawyer Association’s page on forced arbitration with tools to aid in outreach to members of Congress, and read the full New York Times article here.