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Stopping Sexual Harassment: Getting Rid of Forced Arbitration Clauses—What Individuals and Organizations Need to Know, with Gretchen Carlson, Journalist and Advocate, Author, Be Fierce
Forced Arbitration
Usually when I speak in front of large audiences of thousands of people and I ask people in the audience, do you know if you have a forced-arbitration clause in your employment contract, and everyone’s eyes glaze over– they go what? Forced arbitration. 60 million Americans have these clauses in their employment contracts. In fact, when you sign up for cell-phone service, you probably sign an agreement for forced arbitration if you were to get into any sort of disagreement with your cell-phone provider. It’s everywhere.
If you find yourself in a dispute–and trust me, nobody starts a new job and says, hey, I hope I get into a dispute. But if you do, and if you have this arbitration clause, you have to know up-front that no one will ever know about your story ever because forced arbitration, first of all, is not your choice. You’re forced into it. It means you can’t go to an open-jury process, which is your Seventh Amendment right. And it also means that it’s secret. So it really should be called “forced-secret arbitration.”
So with regard to sexual harassment, for example, it’s a dark day when an employee finds out that they have this arbitration clause in their contract because they go to complain to human resources, and what happens? The person there may do this–whew. Nobody will ever know about her story. And they send you off to this secret little chamber of arbitration. You can’t tell anyone what you’re doing. You’ll probably lose your job because you complained. Now you go to the arbitration, and it’s retired judges and lawyers from a different generation who are listening to your case to decide whether or not you’re going to get some sort of paltry settlement. You may or may not win, and then you pretty much never work again.
And the worst part about it is that your alleged predator gets to stay on the job because nobody knows about it. So not only do they get to continue to work, but they potentially get to continue to harass other people.
So when everything is secret on this issue, it keeps all the myths alive. It keeps all the myths alive that women who complain are troublemakers, women who complain just want to be rich and famous, women who complain bring it on themselves. Why? Because when it’s secret, we don’t talk about it. When we don’t talk about it, we don’t improve it.
Make a difference
I’ve been working really hard on Capitol Hill to try and change laws, to get rid of forced-arbitration clauses for sexual harassment and gender discrimination. It’s a very narrow bill. It’s only three pages long. Everyone can read it like this–as opposed to like the health-care bill.
And what I have been preaching to members of Congress is that this issue is apolitical. And that’s why everyone should care about this. When somebody decides to sexually harass you, they don’t ask you what political party you’re in first. They just do it. And that’s why we should all care about this issue. And we have seen titans from both sides fall over the last couple of years. So it’s disingenuous to say it’s only a Republican issue or it’s only a Democrat issue. So this is what I’ve been preaching to members of Congress.
What has been so heartening is that some major companies have decided to take forced-arbitration clauses out of their employment contracts without having passed my federal legislation. The first big company to do this was Microsoft. I thought then that tons of companies would follow suit. And unfortunately, many did not. There were some major companies that were actually actively lobbying against my legislation, which would make you wonder what they had to hide. But in recent time, other companies have now followed Microsoft. So you have Uber. You have Lyft. After the Google walk-out of all those employees internationally, Google joined in. Then you had Facebook, then you had Airbnb. Then you had eBay. So there appears to now be this trend of companies feeling the pressure, but also listening to their employee base–that this is no longer going to be acceptable.
And I think it shows the power of not just one person’s voice, like my own in trying to change and pass laws, but the power of the individual employee–that if you come together, you can actually make a difference. And we’re seeing that happen.