Will Republicans get on board, or get run over?
Last week, every state attorney general in the nation – most of whom are Republicans – signed a letter calling on Congress to ban ‘Roger Ailes’ clauses, that is, the fine-print clauses found in most people’s hiring contracts nowadays that require the employee to resolve any dispute with the employer through binding, secret arbitration rather than in a public jury trial.
I call them ‘Roger Ailes’ clauses in honor of the late Fox News executive who famously invoked such a clause in order to silence one of his employees, news anchor Gretchen Carlson, and a string of other female accusers.
If Republicans are savvy, they’ll go along with the state AGs, because Ailes clauses have become a favorite tool of workplace sex-harassers.
In the wake of the now-all-too-familiar #MeToo revelations about Harvey Weinstein, Roy Moore and others, the movement to ban the controversial clauses is gathering steam.
A new bipartisan bill, S.2203, dubbed by its authors the ‘Ending Forced Arbitration of Sexual Harassment Act of 2017,’ would make the clauses unenforceable in sexual-harassment cases. It already appears to have majority support in both chambers of Congress.
Notably, in the Senate, the bill has the support of two key Republicans, Lisa Murkowski of Alaska and Lindsey Graham of South Carolina, and possibly a third: John Kennedy of Louisiana. Together with all of the chamber’s 48 Democrats, that would give the bill 50 or 51 votes in the 100-member Senate. Its enactment is probably just a matter of time.
Methinks, dear Republicans, that thou wouldst be wise to get on board now, before thou gettest run over.
The secrecy and informality of arbitration are ideal for a workplace predator. In arbitration, there are no guaranteed procedural protections, the results and the reasoning of the ‘neutral’ arbitrators (who are usually hired and paid by the company) are rarely published, and the plaintiff can be put under a legal gag-order. It’s the antithesis of a common-law jury trial.
The issue isn’t trivial, either. Sixty million Americans have a forced arbitration clause in their employment contract.
The new bill is narrowly tailored. Rather than abolishing all forced arbitration clauses, it would only, as we’ve seen, make them unenforceable in harassment cases. That narrow focus should make it easier for Republican lawmakers—most of whom tend to reflexively support all forced-arb clauses on abstract, “right of contract” grounds – to get on board with this new, limited measure.
My preferred shorthand title for the bill is the #MeToo Act, because it was inspired, in large part, by the #MeToo movement, which arguably got its first impetus from the aforementioned, high-profile Ailes-Carlson case.
Indeed, the first time that most Americans ever heard of a forced-arbitration clause was when Ailes invoked one to avoid being sued by Carlson. His goal was to keep her accusations – and those of a string of other women – out of open court and off the front pages.
Carlson had signed one of the boilerplate clauses as part of her initial hiring process at Fox. But she had no contract with Ailes, personally – and thus no arbitration agreement with him. So she sued him instead of Fox. Ailes’s lawyers scoffed. But when a judge indicated he would probably let her suit go to trial, the besieged executive’s own superiors in the company decided to cut their losses and settle. Carlson walked away with $20 million. Ailes retired in disgrace.
The Ailes case shone a welcome light on the dark link between workplace abuse and secret arbitration – a link the #MeToo Act would break.
Until human nature changes, there will always be depraved employers who try to exploit their power for sex. But we can discourage them. We can make it more likely their crimes will be exposed and punished. That requires sunshine. Harassment victims need a public, impartial forum in which to air their grievances. And they also need the time-tested procedural protections that can only be found in a regular court of law.
In a positive sign, Microsoft Corp. has not only came out in favor of the #MeToo Act – breaking with the rest of big business – but has already started complying with it voluntarily.
And now, with a seeming majority of federal lawmakers on board, and all 50 state AGs – the handwriting would seem to be on the wall.
What’s at stake? Carlson summed it up nicely at the bill’s unveiling:
‘Forced arbitration is a harasser’s best friend. It keeps harassment complaints and settlements secret. It allows harassers to stay in their jobs, even as victims are pushed out or fired. It silences other victims who may have stepped forward if they’d known. It’s time we as a nation, together, in bipartisan fashion, give a voice back to victims.’
Amen. This issue should not be partisan.
Every Republican should hurry up and say ‘Me too’ to the #MeToo Act.
Dean Clancy, a former senior official in Congress and the White House, writes on U.S. health reform, budget, and constitutional issues. Follow him at deanclancy.com or on twitter @deanclancy.
[Originally published at usnews.com, Feb. 22, 2018. @usnewsopinion. Republished at deanclancy.com.]