“Everyone knew how powerful Roger Ailes was. I certainly felt intimidated by that.”
That’s how former Fox News host Gretchen Carlson describes Fox CEO Roger Ailes, who she alleges sexually harassed her for years. Earlier this month, Ms. Carlson filed a lawsuit against Mr. Ailes, claiming that he fired her after she rejected his sexual advances. Mr. Ailes has countered that Ms. Carlson was fired for low ratings.
According to Mr. Ailes, the lawsuit is a “tar-and-feather campaign” and a breach of Ms. Carlson’s contract. In a statement, he said, “this defamatory lawsuit is not only offensive, it is wholly without merit and will be defended vigorously.”
We are seeing now that by “vigorously,” Mr. Ailes meant inequitably, behind closed doors, and by depriving Ms. Carlson of her constitutional rights.
Mr. Ailes’s lawyers have argued that the lawsuit filed in New Jersey Superior Court should be submitted for arbitration, due to a forced arbitration clause that appeared in Ms. Carlson’s contract with Fox.
If Ms. Carlson’s lawsuit goes to arbitration, the result will not be decided by a jury of her peers, but rather by a professional arbitrator that is beholden to Fox for future business. Contracts that include forced arbitration clauses keep employee disputes private, and prevent class action lawsuits, which is one of the most powerful tools available to an individual taking on a powerful corporation in court.
For these reasons, forced arbitration clauses have become increasingly popular with corporations. If you have opened a bank account in the last decade, or started a new job, or clicked “Agree” to a Terms of Service contract with Amazon, Netflix, eBay, American Express, Sprint, DirecTV, Budget Rent a Car, or numerous other corporations, chances are you have consented to a forced arbitration clause as well.
To Mr. Ailes’s lawyer David W. Garland, a forced arbitration clause is “a common provision” that exists “for the benefit of all parties to the arbitration.”
To Supreme Court Justice Elena Kagan, it is a tool by which “the monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.”
Ms. Carlson’s contract with Fox is particularly constraining, stating 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.” By speaking publicly about her sexual harassment, Fox claims that Ms. Carlson has violated her contract.
Fortunately, Ms. Carlson and her attorneys may have found a way around her contract. Her lawsuit only levels charges against Mr. Ailes, not Fox News. Since Mr. Ailes was not named in Ms. Carlson’s contract with Fox, she may be able to have the court reject the arbitration clause altogether.
Ms. Carlson is also fortunate to have the support of other woman who have come forward recently to accuse Mr. Ailes of sexual harassment. This list includes Fox News anchor Megyn Kelly, who claims Mr. Ailes made sexual advances toward her early in her career.
We hope that Ms. Carlson is successful in getting her case seen by a jury. No individual should be forced to waive his or her 7th Amendment right to a jury trial just to be able to get a job or apply for a bank account. Unfortunately, most of us have already waived that right many times over.
Sources: Clancy, Dean, “Roger Ailes’ secret weapon: Forced arbitration,” The Hill, 14 July 2016.
Koblin, John and Jim Rutenberg, “Accused of Sexual Harassment, Roger Ailes Is Negotiating Exit From Fox,” The New York Times, 19 July 2016.
Koblin, John, “Roger Ailes, Arguing Gretchen Carlson Breached Contract, Presses for Arbitration,” The New York Times, 8 July 2016.
Stelter, Brian, “Former Fox staffers have Ailes stories — here’s why they’re afraid to speak,” CNN, 18 July 2016.