Roger Ailes’s Secret Weapon: Forced Arbitration

Obscure legal tool is a sex harasser’s best friend.

It’s a story right out of a movie. Roger Ailes, the powerful chief of Fox News, hires a former Miss America, the beautiful and intelligent Gretchen Carlson, to co-host a morning news show.

Carlson’s dream job, however, devolves into a nightmare as her boss, Ailes, starts pressuring her for sex and eventually fires her for refusing his advances.

Or at least, that’s her claim. Only a week old, this high-profile story has already taken a couple of dramatic turns. First, Carlson sued Ailes, taking her damning charges public. He vigorously denied them, pointing to her show’s poor ratings.

But then other women started coming forward with similar stories of crude comments and disgusting quid-pro-quo propositions by the 76-year-old, married Ailes.

Then the plot thickened when his rumored enemies at the network’s parent company — perhaps smelling their chance to be rid of him — launched an internal investigation. Now, it seems, Ailes’s own job is at stake.

Enter Ailes’s lawyers, bearing a secret weapon: a forced arbitration clause, a fine-print provision in Ms. Carlson’s hiring contract (and in most people’s, nowadays) that denies her a right to sue her employer in the event of a workplace dispute.

Instead, she must submit any claims against the company to a “neutral” private arbitrator, who, conveniently, will be hired by Fox News, which, of course, is headed by Mr. Ailes.

If Mr. Ailes can persuade a federal judge to enforce the clause, Carlson’s case will be thrown out of court and into arbitration, where there will be no jury, no fixed rules of evidence, and no procedural safeguards. Everything will be kept secret, including the final decision.

The ploy offers Ailes an ideal tool with which to starve the embarrassing story of oxygen.

But in a possibly clever move, Carlson took care not to sue her employer, Fox News, but only her former boss, Ailes. Her contract, she points out, was with Fox, not Ailes, so the arbitration clause doesn’t apply to her claims.

Or does it? If the judge buys her argument, she can get into court and parade a series of female accusers before the world, telling their disturbing tales on the public record. But will the judge bite?

Hard to say. It’s possible the judge will refuse to enforce the clause. After all, it’s hard to believe Carlson or anyone would ever have consented in advance to a secretive, biased process dominated by the very person she accuses of sexually harassing her.

Like millions of other Americans these days, she almost certainly had little choice but to waive her legal rights as a condition of employment.

On the other hand, the courts have in recent years been stringent about enforcing clauses like the one Ailes is counting on. Thanks to that stringency, and a series of pro-business Supreme Court rulings, the clauses have spread like kudzu.

Whatever the judge decides, it will affect all of us, because nearly all of us (including most probably you, dear reader) formally agree to arbitration from time to time, often without knowing it.

To be sure, binding arbitration can be a perfectly decent option, when it’s truly optional and the contracting parties have roughly equal bargaining power. But by definition sexual harassers and their victims aren’t equals.

Prior to the 1920s, American courts typically declined to enforce arbitration clauses, regarding them as unfair when imposed pre-dispute. And they’re also suspect under the Seventh Amendment, which guarantees access to a jury trial in civil cases.

While we can certainly waive this right, no one can rightfully take it away from us by force. Realistically, we can only give meaningful consent to relinquish it after an injury has occurred.

In 1925, Congress overrode the courts in this area, declaring pre-dispute mandatory arbitration clauses enforceable in basically all contracts that are otherwise free of force or fraud.

But nowadays, most such clauses involve an element of force, because they’ve become so ubiquitous. Force was certainly an element in Carlson’s case. She had to sign, to get her job.

Happily, around the country, courts are beginning to signal a willingness to revisit this issue. And Congress, too, has begun to formally curb the reach of the 1925 law, in such select contexts as mortgages, consumer credit, student loans, and nursing home admissions.

But we need to go further. We need to make these noxious clauses optional again for everyone. Perhaps Carlson v. Ailes will give lawmakers a helpful nudge.

As Mrs. Carlson’s attorneys remind us, access to a jury trial isn’t a luxury, it’s a right “protected by the discrimination laws and our Constitution.”

How will this story end? Stay tuned. The judge has scheduled a public hearing for August 1st.

Whatever he decides will likely affect us all.

Dean Clancy, a former senior White House and congressional aide, writes on U.S. health care, budget, and constitutional issues. Follow him at deanclancy.com or on twitter @deanclancy.


[Originally published at TheHill.com, July 14, 2016. @TheHill. Republished at DeanClancy.com.]

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