- Paul Morigi / Stringer
- With each sexual harassment allegation that comes to light, one question continues to arise: How have these harassers been able to get away with it for so long?
- One major reason is that most of these cases are never brought to court.
- Critics of mandatory arbitration clauses, which are becoming increasingly common in the US, say these company policies force victims to keep silent, allowing a cycle of abuse to continue.
Former Fox News Channel host Gretchen Carlson stunned the media world when she filed a sexual-harassment lawsuit against Fox News chairman and CEO Roger Ailes in 2016.
In her lawsuit, Carlson said Ailes repeatedly sexually harassed her, and that she was fired for turning down his sexual advances.
In signing her employment agreement 11 years prior, Carlson had agreed to resolve disputes with Fox News Channel through private arbitration. But she and her legal team found a way around this by suing Ailes personally.
The lawsuit ultimately led to Ailes’ resignation from the network, which he had run since its founding in 1996, and Carlson settled the suit for a reported $20 million in 2016. The suit also empowered more women to come forward against their harassers.
But the outcome could have been very different had Carlson simply abided by her mandatory arbitration clause.
With each sexual harassment allegation that comes to light, one question continues to arise: How have these harassers been able to get away with it for so long?
It turns out, the blame falls, in part, on the companies employing them.
A growing number of American companies are requiring workers as a condition of their employment to sign agreements that stipulate they must resolve a dispute with their employer through arbitration. This agreement is known as a mandatory arbitration clause.
As a result, more than half of American workers wouldn’t be able to take their sexual harassment claims to court.
More than 56% of American workers – about 60 million – are subject to mandatory arbitration in the US, according to the Economic Policy Institute’s survey of nonunion private-sector employers.
This means that more than half of private-sector employees in the US have signed an agreement with their employer stating that, should they have a legal claim against the employer, they are barred from taking their issue to court and must instead handle the claim through the arbitration procedure designated in the agreement.
The New York Times reports that, between 2005 and 2015, thousands of businesses across the US used private arbitration, depriving tens of millions of Americans of their day in court.
“This amounts to the whole-scale privatization of the justice system,” Myriam Gilles, a law professor at the Benjamin N. Cardozo School of Law, told the New York Times. “Americans are actively being deprived of their rights.”
These clauses are often buried so deep in the fine print that employees are usually unaware that they have signed away their right to bring their case to public court.
What’s more, The Times reports that, with private arbitration, “rules tend to favor businesses, and judges and juries have been replaced by arbitrators who commonly consider the companies their clients.”
Research published in the Brooklyn Law Review shows that employees who are covered by mandatory arbitration provisions rarely actually file arbitration claims. Another study by Cornell University found that those employees who do file arbitration claims are less likely to win and recover lower damages than employees who go to trial.
What’s more, oftentimes arbitration is private and decisions are not published.
“This veil of secrecy protects serial harassers by keeping other potential victims in the dark, and minimizing pressure on companies to fire predators,” Carlson wrote for The Times.
The Arbitration Fairness Act of 2017, which is before the House Judiciary Committee and for which Carlson is an advocate, would prohibit employers from requiring arbitration.
“Reforming arbitration laws is key to stopping sexual harassment,” Carlson wrote.
But she said that it’s also up to companies to act, too.
“By ending arbitration clauses, blacklisting, and workplace cultures where abuse thrives, we can ensure that victims of harassment speak out,” Carlson wrote.
In a blog post titled “Five Things Tech Companies Can Do Better“, Susan Fowler, the ex-Uber employee who wrote a tell-all about sexual harassment and gender bias that shook up the company, also advocates for ending forced arbitration.
She wrote that it “deprives employees of their constitutional rights, and it forces employees who have been treated unlawfully to keep silent about what they have experienced. It is entirely in the interests of the company and not the employee.”