As part of the Fox News morning show, Fox & Friends, newscaster Gretchen Carlson became a familiar face to thousands of viewers. Now her name is in the headlines again. This comes after she was fired from the popular program in June. Her employer said the move was the result of low ratings. But Ms. Carlson stunned the public when she filed a lawsuit alleging her firing was in retaliation after she refused repeated inappropriate sexual advances and harassment from Fox News chairman Roger Ailes. In a most significant happening, Ailes resigned from the company and it appears he was forced out.
The lawsuit has opened a window into an unexpected area – forced arbitration – and that has the potential to shield Ailes from liability. As a term of her employment, Ms. Carlson was forced to sign an employment contract with a binding arbitration agreement. This agreement requires an individual to give up their right to sue in the event of a dispute. Instead, the employee must enter into arbitration. The arbitration firm will be chosen by the employer or the company, putting the employee at a distinct disadvantage. Instead of having a remedy through the court system, arbitration leaves the individual powerless, with a limited ability to present evidence or appeal an unjust decision. It’s basically a secret affair, one which is totally unfair to individuals who have been wronged.
Each and every day, thousands of consumers sign away their Seventh Amendment right to trial by jury by virtue of forced arbitration. These clauses are widely used by banks, internet providers, retailers and numerous other businesses. Most people don’t even know they are agreeing to give up their constitutional rights. In many cases, they don’t even know an arbitration clause is in the document they sign. In cases where they do know, the person is in a position where they can’t refuse to sign.
Ms. Carlson’s lawyers argue that because her lawsuit names Ailes as the Defendant in her sexual harassment suit, not Fox News, the employment contract’s arbitration agreement doesn’t apply. However, lawyers for Ailes say the litigation cannot separate the man from the company. In a statement provided to The Washington Post, a Fox News spokesperson said:
Roger Ailes is the Chairman & CEO of FOX News. Every single allegation in Gretchen’s complaint allegedly took place at FOX News headquarters in New York where he sat in his capacity as CEO. Suing only him is a ludicrous ploy to try to get around the completely enforceable arbitration clause in her contract. You can’t separate the CEO from the company he runs.
A hearing in the matter, scheduled for August 1, will likely be over by the time this issue is received. Whatever is decided at the hearing related to the arbitration agreement will be very interesting, and will have a wide-reaching impact. Almost every American citizen is affected by arbitration and not in a good way. While arbitration agreements can be fine in circumstances where the players have equal footing and even bargaining power, this is rarely – if ever – the case with mandatory forced arbitration. In my opinion, arbitration is as “anti-consumer” as anything could be in this country and has no place in a dispute between a person and a huge corporation.
Our access to justice through a jury trial is one of the most important rights we have. The courtroom is the only place an ordinary citizen has a chance to be heard – on an even playing field – when disputes involve Corporate America. Corporate giants hold the power in arbitration. That was the reason for the Seventh Amendment to the U.S. Constitution. It’s time to take back our Seventh Amendment rights. That will require putting an end to forced arbitration and we must all join the fight on behalf of the American people.
It will be very interesting to see how this case turns out. It will certainly seem that a broadcasting company would want an employee’s constitutional rights to have real meaning and also would want the public to have complete access to what happens in a civil dispute involving a top official at Fox News, who allegedly is a serial wrongdoer, and who has left the company. Finally, I predict there will be more claims – similar in nature to those of Ms. Carlson – filed against Fox and the departed Mr. Ailes in the next few weeks.
Sources: The Hill, Insurance Journal, The Washington Post
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