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When victims of sexual harassment in the workplace gather the courage to come forward, many learn troubling news: They are legally forbidden to sue their employer.
Mandatory arbitration clauses mean that many — if not most — cases of sexual harassment are dealt with behind closed doors. Instead of making their way to court, they are settled by arbitrators, independent professionals who are selected to resolve disputes. It’s estimated that more than 60 million Americans have signed such arbitration clauses. Today, the Supreme Court ruled that it’s legal for companies to require employees to sign arbitration clauses in their employment contracts, making it impossible for these workers to bring class action lawsuits against employers over labor disputes.
In July 2016, Gretchen Carlson sued Fox News chair and CEO Roger Ailes for sexual harassment, a move that eventually won her $20 million and encouraged dozens of other Fox employees to come forward. In the end, Ailes was forced to step down. Now Carlson is focusing her efforts on ending forced arbitration, which she signed in her own contract with Fox News, and helping women speak publicly about harassment. She’s not allowed to explain how her lawyers managed to get around the clause, and says that kind of secrecy is part of the problem.
In the documentary series America Divided, which aired earlier this month on Epix, Carlson makes clear that her goal is getting a federal law passed that would eliminate mandatory arbitration in harassment for gender discrimination cases. One has been introduced by a bipartisan group of lawmakers, including Sens. Lindsey Graham of South Carolina and Kirsten Gillibrand of New York.
Carlson is not alone: Susan Fowler, the former Uber engineer who came out publicly against her employer alleging sexual harassment, is also working with members of the California State Assembly to pass legislation to eliminate forced arbitration, which prevented Fowler from coming forward about sexual harassment at Uber until after she quit.
“Very early on, I realized that it was a pervasive epidemic,” Carlson says of mandatory arbitration.
”When I filed my suit, I had no idea how pervasive it was across every socioeconomic line and every profession, from Smalltown, USA, all the way to Washington, DC.”