The news story surrounding former FOX News anchor, Gretchen Carlson, has gone viral. She is attempting to sue her former boss and FOX News chairman, Roger Ailes, for sexual harassment. Her case was filed in state court in New York. However, attorneys for Ailes claim that Carlson must abide by an arbitration agreement, which was in her employment contract. Therefore, Carlson may not have a right to a trial by jury.
This may seem like a minor procedural detail, which is exactly what powerful companies and the U.S. Chamber of Commerce want us to believe. After all, arbitration has been around a while. In-and-of-itself, it’s not necessarily a bad thing. In fact, when both sides are in agreement to use arbitration, it can help speed along the resolution of a case. I’ve used arbitration before with clients and will likely use it again in the future.
However, this situation is very different. Carlson may be forced to use arbitration because of a clause in the employment contract she signed with Fox. It’s what we refer to as “mandatory arbitration.” She was required to agree to it long before she began experiencing the harassment or before the dispute arose. Mandatory arbitration is now very common in all aspects of our lives. These binding mandatory arbitration agreements are being buried into almost every consumer contract out there. They’re a part of the “fine print”, so to speak. Mandatory arbitration clauses are showing up in bank and credit card agreements, insurance contracts, employment agreements, and even nursing home admission paperwork.
So what’s the problem with arbitration, you may be asking? An arbitration is a private judicial proceeding. The arbitrators are paid by the parties. They are not government officials. The problem is that everything in an arbitration proceeding is kept hidden from the public. All information leading to the result of the arbitration will be kept secret. There is no judge, no public record, and no jury.
Our Founding Fathers thought that a right to trial by jury in civil cases was so important that they carved it into stone as the 7th Amendment to the Constitution. It is, literally, in our Bill of Rights. The reason trial by jury in civil cases is so important is that it allows the average person to have equal footing in a dispute with the rich and powerful. An individual has as much standing as General Motors or Bank of America. It keeps people, such as Ailes or any other large and powerful entities, accountable for their actions in a public forum. That is exactly why Roger Ailes and Fox News want arbitration instead of a jury in a court of law. They don’t want the public to know how badly they have behaved.