Arbitration Clauses Diminish Rights of All Ages & Genders, Not Just Elderly

Gretchen Carlson, a Stanford-educated anchor of several past successful programs on Fox News, wants the world to know that Americans, and women in particular, are having their rights taken away by arbitration clauses in employment agreements. In a piece published in Motto, a TIME magazine affiliate, Carlson cites a 2010 statistic from the National Employment Lawyers Association: Nearly 1/3 of the non-unionized workforce is currently under an employment agreement that requires arbitration in the instance of any sort of employment dispute. Disputes could be anything from wrongful termination to sexual harassment.

Carlson vs. Fox News
Carlson is an important voice in the fight against sexual harassment in the workplace. After being fired from Fox News, she filed a lawsuit against 21st Century Fox (the owner of Fox News) and Fox News’ chairman, Roger Ailes, citing years of sexual harassment. After Carlson came forward in July 2016, many other women brought forth similar claims and within 2 months the news network settled the lawsuit for $20 million.  Fox attempted to push Carlson into arbitration, saying that she had signed an employment agreement that specified all workplace claims were to be settled through arbitration and not a jury trial. Carlson refused to back down, saying that forcing victims of sexual harassment into closed door negotiations meant that the public never learned of the crimes and let the perpetrator off too easily. In the article, Carlson also remarks that those forced into arbitration fare worse than if they were allowed their 7th amendment right to a trial by jury.

Arbitration Clauses: A Bi-Partisan Issue
While Carlson’s fight is focused on workplace sexual harassment being forced into closed door arbitration, she is speaking out against arbitration agreements as a whole, citing the case of a soldier who was fired after notifying his employer of his deployment (which is illegal). Carlson is hoping that speaking out against arbitration clauses will attract the attention of Americans of all ages, races, genders and political affiliations.

The timing of Carlson’s article is not coincidental. This February, Senator Al Franken of MN and Senator Patrick Leahy of VT reintroduced a bill called Restoring Statutory Rights & Interests of the States Act. The bill proposes that any claim that violates state or federal law automatically bypass arbitration and proceed to the courts. The bill also calls for states to hold the power to decide on the legality of arbitration clauses based on the current law in their jurisdiction. The bill also would give full power to the court (and not the arbitrator selected by a corporation) to decide if arbitration clauses are legal.

Arbitration Clauses Becoming Harder to Avoid
It seems nearly impossible to read a contract these days without seeing an arbitration clause embedded somewhere within the fine print. Many contracts for nursing homes, schools, youth activities and events, use of public facilities and gyms, cell phones, housing leases, and employment agreements all use forced arbitration agreements as a way to mitigate their responsibility for negligence, whether intentional or unintentional. The problem with these agreements is that for many Americans these contracts are a necessary part of life. For example, how can you enroll your child in a youth swimming league if the contract specifies that any injury that occurs must be settled within the confines of an arbitrator’s office, an arbitrator who most likely has no legal experience and was selected by the very organization or company you’re up against?

For right now, as Carlson says, we have to hope that our voices will be heard by both Democrats and Republicans and that the Restoring Statutory Rights Act is passed and becomes law. A call to your Senators is always a powerful tool in making a difference. To find out who your Senators are and to obtain a quick voicemail script of how to make your support for the Restoring Statutory Rights Act known, please click here.

Lawyer Monthly - Legal Awards Winner
The National Trial Lawyers
Elder Care Matters Alliance
American Association for Justice
Fellow Litigation Counsel of America
Super Lawyers
Contact Information