Last week, former Fox News host Gretchen Carlson filed a sexual harassment lawsuit alleging a wide range of unacceptable conduct by her former boss, Fox CEO Roger Ailes. Among other things, she claims that Ailes would ask her to turn around so that he could examine her posterior, that he told her that “you and I should have had a sexual relationship a long time ago,” and that Ailes “retaliated against Carlson and sabotaged her career because she refused his sexual advances and complained about severe and pervasive sexual harassment.”
Yet, if Ailes has his way, Carlson will never even see her day in court.
On Friday, Ailes’ attorneys filed a motion in federal court insisting that her case be moved to a secretive, privatized arbitration system that is typically far more favorable to employers. Carlson, it claims, signed an agreement with Fox News providing that “any controversy, claim or dispute arising out of or relating to this Agreement or Performer’s [Plaintiff’s] employment shall be brought before a mutually selected three-member arbitration panel and held in New York City in accordance with the rules of the American Arbitration Association [“AAA”] then in effect.” Although Carlson listed Ailes and not Fox as the defendant in her suit, the motion also cites cases suggesting that Fox’s employees can benefit from the arbitration agreement Carlson reportedly signed with Fox.
It’s a common tactic by employers, and one that stands a very good chance of prevailing. Prior to Justice Antonin Scalia’s death, the Supreme Court’s conservative majority was very permissive of businesses that try to force workers and consumers out of court and into arbitration. And, while the current Court lacks the conservative majority it needs to extend many of these decisions, it also lacks a majority that would be inclined to overrule them.
As an Economic Policy Institute report on forced arbitration details, employers benefit tremendously by shifting suits out of court and into privatized arbitration forums. EPI reports that over 36 percent of employment discrimination plaintiffs prevail in federal trial courts (the bulk of federal lawsuits involving the workplace involve allegations of discrimination), and 57 percent of non-civil rights plaintiffs prevail in workplace lawsuits brought in state court. By contrast, fewer than 22 percent of employees prevail in arbitration.
When employees do prevail, moreover, they typically win significantly less money in arbitration than they do in court:
Often, employers are able to force their employees into arbitration agreements because they make signing such an agreement a condition of employment — sign away your right to sue or you’re fired. And the Supreme Court endorsed this practice, despite the fact that the federal law protecting arbitration agreements explicitly exempts employment contracts.
The Federal Arbitration Act exempts “workers engaged in foreign or interstate commerce.” Nevertheless, in Circuit City v. Adams, a 5–4 Supreme Court held that the act applies to workers engaged in foreign or interstate commerce.