Pursuing justice quietly

On Feb. 10, former Fox News anchor Gretchen Carlson stood with legislators at the Capitol to celebrate the passage of a bipartisan bill to drastically alter federal law surrounding employment contracts. Carlson accused the late network CEO Roger Ailes of sexual harassment in 2016. In the fallout of the scandal and the resurgence of the #MeToo movement, Sen. Kirsten Gillibrand, D-N.Y., introduced the bill with Sen. Lindsey Graham, R-S.C., the same year.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 targets employee contracts—specifically clauses that, under the Federal Arbitration Act, mandate arbitration in workplace disputes. Carlson frequently testified that arbitration in sexual harassment cases silences survivors of abuse and allows companies to hide their misdeeds. President Biden signed the bill into law on March 3.

The legislation does not ban arbitrations outright, but if they are to be included in a contract from now on, both the employer and the employee must agree on it. “It’s all about freedom of choice,” said Remington Gregg, counsel for civil justice and consumer rights at Public Citizen.

The new law has been lauded as a step forward for the #MeToo movement, but some legal and policy experts say arbitration has been unfairly tarnished in the public mind and may often be a better option for women who have been victims of sexual harassment.

Arbitration comes into play for noncriminal situations such as harassment and misconduct. It became standard at several companies to make an arbitration clause a condition of accepting a position. Dozens of women, including Carlson, testified before Congress in November about ways employers or co-workers took advantage of these clauses, along with confidentiality agreements, to get away with misconduct.

Actress Eliza Dushku said CBS fired her from its prime-time drama Bull after she said a producer harassed her by making rape jokes and lewd comments. She did not know she had a forced arbitration clause and had earlier signed a non-disclosure agreement. The Boston Globe reported in 2018 that CBS paid her a $9.5 million settlement.

But Roger King worries that such high-profile cases and harsh language like “forced” associated with arbitration will discourage employers from even discussing the option under the law. He worked as a law firm partner for 25 years before shifting to become a full-time labor relations attorney at HR Policy Association, a membership organization representing more than 400 human resource officers of Fortune 500 companies.

King said this arbitration option appeals to many plaintiffs who do not want grievances aired in public. “I’ve seen how poorly the courts work, or how they don’t work as the case may be,” King said. “Employees can be treated very unfairly by lawyers and the court system. Correspondingly, I’ve seen arbitration work time and time again. There are seasoned, thoughtful arbitrators who do this for a living.”

Sometimes companies have preferred arbitrators they have used frequently and suggest when a situation arises. Depending on the process, the complainant and the employer might separately cross off options from a list or pick a team of multiple arbitrators. Both parties must agree to the final person, who must disclose any conflicts of interest. The arbitrator’s decision is binding.

Emory University law professor Michael Broyde has sat in on a variety of arbitration proceedings as a member of the Beth Din, the largest Jewish law court in America. In determining the facts of a situation, he could keep the claimant and the accused in separate rooms, ensuring privacy. But in a court of law, both parties must be physically present, which could intimidate an employee coming forward with harassment evidence.

“Privacy does empower perpetrators,” Broyde said, “but it also empowers victims.”

Privacy holds an important role for Christians, according to Frank Sommerville, formerly an attorney based in Grand Prairie, Texas, and now senior editorial adviser for Church Law & Tax, a division of Christianity Today. Many churches follow a 1 Corin­thians 6:1-11 dispute process, which outlines several steps for Christians to pursue private conflict resolution as a first option. So lawyers like Sommerville often arbitrate to determine a settlement for companies, organizations, and churches to keep the matter out of the courts. When it comes to sexual harassment cases, Sommerville said many arbitration cases involve compensating and caring for a victim after an abuser has already been fired.

“Often cases ended up with a church and an individual praying for each other and restoring a relationship,” Sommerville said. “That’s not a result you would typically get at the courthouse where sometimes the focus is all about money. Christian arbitration focuses on Biblical principles as well as legal principles.”

This isn’t the end of the road for arbitration legislation. The Forced Arbitration Injustice Repeal (FAIR) Act passed the House in 2019 with nearly unanimous Democratic support and Republican opposition. It would prohibit all pre-dispute arbitration, not just for sexual harassment, rocketing cases directly to the courts. King testified before Congress against the act in November, arguing that cracking down on arbitration based on a few bad actors will instead make justice harder for claimants to achieve.

But Gregg said the bad actors prove the need for the FAIR Act to clean house: “All forms of forcing you into arbitration should be banned in society. The #MeToo movement showed how these clauses are used to not only allow corporate wrongdoers to escape accountability but also make it difficult if not impossible to clean up these issues. Public scrutiny is what forces large industries to make changes.”

King agreed that public attention should be leveraged against corporations to hold them accountable, but he said restricting non-disclosure agreements might be a more effective way to do so rather than eliminating arbitration clauses. Most of the women who testified in Congress reported situations where their alleged abuse was hidden not only by a private arbitration but also by confidentiality agreements.

“If you put proper procedural safeguards in and you do away with NDAs, you have total transparency between both parties even with arbitration,” King told WORLD. “But the courts are already overwhelmed with their [schedule] and are not able to handle the oncoming influx.”