Forced arbitration clauses may seem like harmless fine print when you’re applying for work or starting a new job, but they have real consequences when the time comes to enforce your workplace rights.
Too often, forced arbitration clauses are used by companies to hide pervasive workplace sexual harassment and discrimination. By forcing claims of sexual harassment into confidential arbitration proceedings, companies are able to silence employees who have had to endure sexual violence and intimidation in the workplace and hide from public scrutiny. Unfortunately, it is often only through public exposure that companies change their policies to put discriminatory practices to an end.
Below are two stories that, because of forced arbitration, we almost never heard. Cases like these represent the situation millions of employees face every day in America. They describe workplaces where sexual harassment had run rampant for years, where employers swept repeated instances of sexual harassment from known offenders under the rug, and where workers who had the courage to speak up were fired and, if they sued, were ushered out of public view and forced into secret private arbitration.
Has an employer ever forced you into arbitration, or fired you because you refused to waive your right to go to court? If an employer has ever required you to sign an arbitration clause as a condition of employment, we want to hear from you. Tell us your story!
Karla Amezola worked hard to become a successful news anchor. She was hired in 2011 as a news reporter for Noticias 62 on Estrella TV, a subsidiary of Liberman Broadcasting, Inc., and quickly excelled. In her time as an anchor for the network, Karla was nominated for an Emmy and won the Golden Mike Award in both 2014 and 2016 for her outstanding journalism.
Angulo used sex as a weapon to threaten Karla’s career. He would inform Karla about upcoming opportunities to participate in career-advancing meetings with network executives, but would not allow her to attend unless she agreed to have sex with him—an offer she never accepted. When Karla asked for a raise, Angulo conditioned it on her performing sex acts with him, which she steadfastly refused. In an especially egregious violation, Angulo once cornered Karla, groped her body, and forcefully kissed her against her will.
Karla reported Angulo to Human Resources, but the company did nothing, despite the fact that Karla provided evidence that supported her allegations. It turned out that Karla was not the only woman Angulo sexually harassed, and the company already knew it. Another female anchor came forward with similar complaints, only to be fired. Meanwhile Angulo faced no repercussions for his inexcusable conduct. In February 2017, months after she filed her complaint in court, the TV station fired Karla, too—even though she had won national awards for her journalism the year before.
Karla sued the company and Angulo under state laws designed to protect employees from a hostile work environment, harassment, retaliation, and other harms no person should ever have to experience in the workplace. However, because her contract contained a forced arbitration clause, Karla’s case may never see the inside of a courtroom. Karla is challenging the forced arbitration clause, but existing law makes it an uphill battle.
Normally, as a California resident working for a company in California seeking to enforce her rights under California law, the California state courts would be able to enforce the state’s laws in public proceedings, on the record. Yet, despite the fact that Karla has not filed any federal claims and is not proceeding in federal court, under the U.S. Supreme Court’s interpretation of the Federal Arbitration Act, the details of Karla’s case could remain secret.
Unless Karla can overcome the forced arbitration clause she had to sign as a condition of her employment, the state court will be required to send the state law claims into private arbitration proceedings, where the details of her story and her employer’s illegal conduct will be hidden behind closed doors. Alternatively, if Karla is given her day in court, her case could help shine a light on the type of persistent sexual harassment she endured at the TV station, which could lead to more meaningful accountability for perpetrators of sexual harassment, while sparing countless other women the same despicable treatment.
A Stanford University graduate, Gretchen Carlson has had a brilliant career as a best-selling author and award-winning journalist. Gretchen got her start in television news anchoring for local stations, before moving to her first national reporting position in 2000. At the national network CBS, Gretchen co-hosted “The Saturday Early Show” and served as a correspondent covering events of significant historical and political import, including the presidential election between George W. Bush and Al Gore, the execution of Timothy McVeigh, and the September 11, 2001 attacks on the World Trade Center. She also won several national awards for reporting and producing a 30-part series on domestic violence.
The sexual harassment Gretchen experienced at Fox News wasn’t limited to Doocy, but was a product of a culture created at the highest levels of the company. The company’s CEO, Roger Ailes, repeatedly sexually harassed Gretchen. He would ogle her whenever they were in the same room; he would make sexual comments and advances; and on numerous occasions, he asked her to turn around so he could leer at her backside. When Gretchen complained about the way Doocy was treating her, Ailes told her she needed to “get along with the boys.” Then, in retaliation for her speaking out, he substantially reduced her broadcasting appearances. Rather than hold Doocy accountable for his actions, in 2013 Ailes further retaliated against Gretchen by removing her from the “Fox & Friends” team altogether, and assigning her to a show in a much less desirable mid-day time slot.
Gretchen worked tirelessly to make her new show, The Real Story with Gretchen Carlson, a success. Even though her workload significantly increased, she was paid substantially less than her male counterparts. In the three years it was on the air, Gretchen’s show consistently ranked number one in its time slot. By June of 2016, her viewership had increased 30% over the prior year, with her upward trajectory showing no signs of slowing down. Unfortunately, in her time since Fox & Friends, the unfair treatment hadn’t slowed down either.
Gretchen attempted to put an end to the discriminatory and harassing behavior in September 2015 by meeting with Ailes and addressing the matter head-on. In that meeting, Ailes said, “I think you and I should have had a sexual relationship a long time ago and then you’d be good and better and I’d be good and better, “ adding that “sometimes problems are easier to solve” that way. After again refusing his unwelcome invitation to engage in a sexual relationship, Ailes retaliated against Gretchen by refusing to renew her contract—effectively firing her—the following June.
Because Gretchen’s contract with the network included a forced arbitration clause, had she sued Fox News, there was a serious risk that everything she experienced would have remained hidden in confidential arbitration proceedings. This would have left Ailes and others at the network free to engage in sexual harassment with impunity.
Not wanting to let that happen, Gretchen bravely exposed the pervasive unlawful treatment she endured at the network by suing Roger Ailes directly. Because he was not a party to the employment contract that Gretchen signed with Fox News, the forced arbitration clause did not apply to Ailes as an individual. This allowed Gretchen to pursue her claims out in the open and bring his appalling unlawful behavior to light. As a result of the shocking nature of her allegations and the harsh public scrutiny that followed, Fox News fired Ailes. Ultimately, Gretchen settled her claims, but retained the right to publicly speak about forced arbitration and sexual harassment.
Since Gretchen’s story became public, many other women have come forward with their own stories of the sexual violence and intimidation they experienced from Roger Ailes and other prominent men at Fox News. For example, leading anchor Bill O’Reilly was fired following a New York Times article exposing that the network had paid over $13 million to five women to resolve their complaints of his sexual harassment and other inappropriate behavior spanning over a decade. Time will tell just how many more current and former Fox News employees will feel empowered by Gretchen’s example to speak out regarding the unlawful treatment they have endured while working for the network.
Gretchen has come away from her experience as a champion for people who have endured workplace sexual harassment, and she has embraced speaking out against forced arbitration. Gretchen has given interviews and written articles about the ways forced arbitration keeps workplace sexual harassment a secret and allows it to continue. She has stood by members of Congress seeking to change the law to end the use of forced arbitration clauses in employment contracts. In her new book, Be Fierce: Stop Harassment and Take Your Power Back, which is scheduled to be released October 17th. (Pre-order at www.GretchenCarlson.com). Gretchen writes about how for too many women justice for workplace sexual harassment is inaccessible. Through these public acts, Gretchen is shining a light on how forced arbitration in the workplace allows sexual harassment to go unchecked by isolating victims and keeping it a secret.