Gretchen Carlson Won a Large Settlement, But Forced Arbitration Means Other Women Have a Much Harder Time
Roger Ailes is out at Fox News and Gretchen Carlson received an apology and a large settlement. For those of us who have spent decades working to protect women in the workplace, it is very good news that Fox News paid a high price for subjecting Carlson — and several other women — to years of outrageous and humiliating sexual harassment.
It is also good news that Roger Ailes was not able to force Carlson into arbitration, which would have cloaked the case in secrecy, denied Carlson her day in court, and resulted in the suppression of allegations of harassment by other female employees at Fox.
Unfortunately, too many victims of sexual harassment are denied justice due to forced arbitration, which is a secretive process where the facts, outcome and even legal reasoning are hidden from the public. Increasingly common, forced arbitration clauses are buried in the fine print of all types of employment documents, such as job applications and employee handbooks.
At least one-third of the non-union workforce is subject to forced arbitration, according to a 2010 study by the National Employment Lawyers Association, and it’s likely that number has increased thanks to subsequent Supreme Court decisions that emboldened corporations to adopt the abusive practice.
They have a clear incentive to do so. When a dispute is decided in court, the rules are established by a neutral body and apply equally to all parties. However, employers have almost free rein to establish rules that will apply in forced arbitration. For example, an employer may dictate that the employee has no right to collect evidence or to present her or his case. The employer can even say that the arbitrators are not required to apply the law when reaching their decisions — and that is almost impossible to appeal. The employer can even choose the arbitrator who will decide the case.
It’s hardly surprising, then, that a 2011 study by Cornell University Law Professor Alexander Colvin determined that employees were less likely to prevail in forced arbitration than in court. And when employees won in arbitration, they recovered much less than a court would have awarded.
In other words, forced arbitration is stacked against the employee.
It is unjust for a number of reasons, but its secretive nature is especially devastating for victims of sexual harassment because not only is an employee sent to a rigged forum designed by the very corporation against which she has a claim, but also because the employer is not compelled to take action and other victims are prevented from discovering they are not alone.
The Equal Employment Opportunity Commission (EEOC) echoed these concerns in a review of its program to combat systemic discrimination in the workplace, which was released last month. The EEOC recognized that the growing prevalence of forced arbitration could dismantle advances in eradicating employment discrimination and harassment and make it more difficult for the agency to monitor and address wrongdoing.
Since Carlson’s suit was first filed, more than a dozen women came forward to claim they were similarly victimized by Ailes. Had Carlson filed in forced arbitration instead of in a public court, as Ailes claimed her contract required, we would have never learned of the alleged wrongdoing by Ailes, and Fox would likely have evaded accountability.
Recently, the Obama administration acted to stop certain businesses that accept taxpayer-funded federal contracts from evading the law through insidious forced arbitration clauses. The Fair Pay and Safe Workplaces Executive Order would prohibit federal government contractors with contracts worth more than $1 million from requiring employees to go to arbitration if they allege workplace sexual harassment, sexual assault or discrimination prohibited by Title VII of the Civil Rights Act of 1964.
Unfortunately, powerful corporate interests have asked their allies in Congress to add a rider to the National Defense Authorization Act that would obstruct the administration’s authority to ensure that federal contractors follow our nation’s employment and civil rights laws. If they are successful, taxpayers will remain in the dark about whether their hard-earned money is funding an enterprise that discriminates against or abuses its women employees.
Forced arbitration allows employers to sweep even the most egregious harassment under the rug, sometimes for decades, and evade laws designed to protect women from sexual harassment in the workplace. Carlson’s quest for justice was not denied due to forced arbitration, but the outcome is very different for many other victims of sexual harassment.
If we truly want to empower women to speak out against sexually predatory behavior, which is the essential first step in stopping it, we simply must ensure that they can do so in court — a forum designed to vindicate civil rights for all of us.
