If you need a North Carolina employment attorney, you probably aren’t thinking about the story of Gretchen Carlson’s firing by Fox News and her lawsuit against the CEO. The story is well known by now: a news anchor in New York City says she was dismissed because she was sexually harassed by her boss, Roger Ailes, and she refused to go along with it. As many as 20 other women at FOX News tell of harassment by Ailes, including a woman who reported nearly 20 years of forced sex and “psychological torture” from Mr. Ailes. No one would disagree that the harassment was terrible for the women involved.
North Carolina employees should take note, however: Gretchen Carlson’s firing and the reasons for it could easily have been swept under the rug. Ms. Carlson had an employment contract that allowed all disputes to be settled by forced arbitration. And North Carolina employees can be subject to forced arbitration too.
What is Forced Arbitration? Forced arbitration is a way to keep employees (and consumers) out of court. Some call it mandatory arbitration rather than forced, but arbitration is only mandatory because it is forced on an employee. Sometimes big companies stick the part of the contract that requires arbitration in the agreements that are signed at the beginning of employment. The requirement also could be written in a separate contract after the employment has begun. But the effect is the same: forced arbitration is chosen by companies so that the legal process is changed if employees claim that they are discriminated against or harassed.
No Judge or Jury. There is no judge and there is no jury when arbitration is forced on an employee. Arbitration can keep all evidence out of the public eye, because the employer can require that everything be kept secret that happens in the arbitration. Contrast that with a lawsuit, where every paper filed with the court is on view. The arbitrator who decides the case is often selected by the same company that is accused of doing something wrong and harmful. The deck is stacked in favor of the employer.
Why is Forced Arbitration a bad thing?
- Evidence and discovery can be limited: employees cannot find out about other employees who have suffered the same way they have
- Companies can still choose to go to court – it is the employee that cannot
- Employees’ awards after discrimination or harassment are often less than after court trials
- Employees’ chances of winning are smaller than with a lawsuit
- Sometimes employers have bad patterns of conduct that are kept secret by arbitration
- Costs can be high when the employee has to pay a share of the arbitrator’s fee
The Seventh Amendment to the United States Constitution gives the right to trial by jury. But courts have often said that people and companies can decide to go to arbitration and the court will recognize the contract. When challenged, sometimes courts have decided to make arbitrations public, even if they are meant to be confidential in the contract.
Tia’s Story. Think it is only news anchors and celebrities who have to worry about forced arbitration? Think again! Take the story of an employee of Circuit City, the old electronics retailer. Tia was harassed by her boss when she was in training to be a manager. The harassment was disgusting, including when the boss exposed his genitals to Tia. Some of the harassment was caught on tape. It was not until then when Circuit City fired him.
Tia filed a lawsuit. But even though the Equal Opportunity Employment Commission found in her favor, Tia’s case was thrown out of court because of the arbitration clause that was buried in her employment agreement.
Tia then went to arbitration because she had no choice. But as we know, Circuit City went out of business. Tia’s case was over.
Gretchen Carlson’s lawsuit is against Roger Ailes, and not her employer FOX News. This may allow her to get into court. But it may not: Ailes lawyers filed a motion to force Ms. Carlson back into arbitration. You should be allowed to take your case to a judge and jury. Your right to a jury trial ought to be fought for, just like any other constitutional right.