Former Fox News journalist Gretchen Carlson recently filed a sexual harassment lawsuit against Fox News news chief Roger Ailes that has received a lot of media attention. One aspect of the case that has received attention is Ailes’ efforts to force the lawsuit out of the public eye and into secretive arbitration proceedings. Ailes’ attorneys have griped about trying his case in the press even though Ailes has aired allegations against countless other people in the press over the years.
Carlson filed her lawsuit in court, instead of arbitration, because her lawyers have argued that she agreed to pursue claims against Fox News in arbitration but not against Ailes himself. And her lawsuit is against Ailes, not Fox News. But that has not stopped Ailes’ attorneys from aggressively trying to push the case out of the public eye and into arbitration.
The arbitration agreement that Carlson signed is remarkable because of the scope of confidentiality it requires. Normally, arbitration agreements keep cases out of the public eye because they require workers to bring their claims before a private arbitrator, instead of the public court system. However, the arbitration agreement that Carlson signed forbids her from disclosing what happened to her to anyone outside of the arbitration proceedings. Cliff Palefsky, a lawyer who heads the National Employment Lawyers Association’s task force on mandatory arbitration, calls this level of confidentiality a “gag order” and argues that it should be unenforceable because it goes against public policy.
The U.S. Equal Employment Opportunity Commission has recently warned that arbitration can have negative effects on efforts to fight against discrimination in the workplace and advance the law. According to the EEOC, “mandatory arbitration policies shield many industries and their employment practices from public scrutiny by requiring individuals to submit their claims to private arbiters rather than public courts. By taking discrimination claims out of the public view, forced arbitration can prevent employees from learning about similar concerns shared by others in their workplace and can impede the development of the law. It can also weaken an employer’s incentive to proactively comply with the law, when organizations are not held publically accountable for violations of anti-discrimination laws.”
The Maine Employee Rights Group has successfully represented workers in arbitration, when required, but has also successfully challenged the enforceability of arbitration agreements in court. If you’re a Mainer, your employer has violated your rights, and you signed an arbitration agreement, you should contact us to learn more about your options.