Blonde, Head, Woman, Girl, Face, Person

By:  Amy Epstein Gluck

The upcoming TIME headline reads: “Gretchen Carlson wants to change the way women fight sexual harassment.” You can see the cover here. That’s exciting, and we can’t wait to see what she comes up with. Thanks to Circa for giving me a heads up.

An Epidemic?

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TIME states: “Carlson gives an exclusive, wide-ranging interview to TIME, in which she discusses her future plans to combat sexual harassment in the workplace. Carlson also reveals for the first time that she has agreed to testify before Congress after the election about forced arbitration, the fine print that permits companies to have new employees sign away their rights to litigation and instead agree to settle all employment disputes via arbitration.”

She also discusses the utter pervasiveness of sexual harassment and that it’s not just a lone creep—perpetrators are often powerful men and those in the public eye “who influence our culture” that contribute to the current epidemic. And it is an epidemic. Harassment is occurring in every town in every city in America.

Indeed, and as my esteemed partner, Rich, discussed here, the EEOC has made combating sexual harassment a priority—and this happened before Ms. Carlson filed her lawsuit against Roger Ailes and Fox News settled with her. The first Commission meeting of 2015 focused on preventing and addressing workplace harassment. The EEOC reports hearing testimony that one in four women face harassment in the workplace, a number that the Commission believes is higher because so many women fear losing their jobs and, as we discussed here, often do not report the harassment.

Mandatory Arbitration

I find the arbitration issue interesting. Arbitration is an alternative (to litigation) dispute resolution procedure where parties sit down and have their disputes decided by a third party neutral arbitrator. Arbitration is usually only available as an alternative to litigation if all parties consent to it, but hot topic issue is whether an employee who signs an agreement to arbitrate all disputes as a condition of employment has truly consented. After all, typically, the employer has the leverage here.

So why arbitration as opposed to litigation?

Hammer, Court, Dollar, Dollar Sign, Fine

Presumably, a major reason Ms. Carlson’s lawyers filed suit against Ailes only is because Ms. Carlson had signed a contract with her employer, Fox News, stating that in the event of any employment dispute, the parties agreed to settle the suit by binding arbitration.

While this may seem reasonable, a binding arbitration clause shields a company from public scrutiny in the event that sexual harassment allegations surface, and the employee loses the benefit of a potentially sympathetic jury pool and public opinion. Arbitration is a closed forum, and the decision has no precedential value.  Plus, arbitration can be as expensive as litigation.

Ms. Carlson joins the sponsors of the anti-forced-arbitration laws are Democratic Senators Patrick Leahy and Al Franken, and, after reviewing the legislative history, she says, as TIME reports “The intent of the Supreme Court when they ruled on arbitration was to unclog the courts,” she says. “It was not to put issues of discrimination and harassment into covert operations.”

Potential Takeaway for Employers:

I am going to go out on a limb here and say anti-forced arbitration laws are going to become a hot topic at the end of this year and into 2017. Savvy employers might want to review their policies now to determine whether they are really trying to act fairly and keep costs down for everyone…or just trying to muzzle employees who complain about discrimination.

This TIME article will appear in the October 31st issue, and I can’t wait to read it.