Will Gretchen Carlson’s Case Against Roger Ailes Go Through the Courts, Not Arbitration, Because of Sloppy Drafting?

You may have heard about the lawsuit that Gretchen Carlson filed against Roger Ailes.  According to the New York Times:

“Roger Ailes, the chairman of Fox News, was accused on Wednesday of forcing out a prominent female anchor after she refused his sexual advances and complained to him about persistent harassment in the newsroom, a startling accusation against perhaps the most powerful man in television news.

“In a lawsuit, the anchor, Gretchen Carlson, a longtime Fox employee who left the network last month, portrays Mr. Ailes as a loutish and serial sexual harasser, accusing him of ogling her in his office, calling her ‘sexy,’ and describes a boys’ club environment at the network.

“Her charges — including the accusation that Mr. Ailes explicitly asked Ms. Carlson for a sexual relationship during a meeting in his office — amounted to an almost unprecedented public attack on Mr. Ailes, a towering figure in media and Republican politics who typically enjoys absolute loyalty from his employees.

“Late Wednesday, the parent company of Fox News, 21st Century Fox, issued a measured statement, saying it had ‘full confidence’ in Mr. Ailes, but had initiated an internal review of Ms. Carlson’s charges. ‘We take these matters seriously,’ the company said.”

Carlson’s employment agreement included an arbitration clause and Ailes has moved to have the case heard in arbitration.  Carlson’s complaint names Ailes and not Fox, so she argues that the case may be heard in arbitration since the agreement doesn’t cover a complaint against Ailes personally.

Washington Post blogger Eric Wemple quotes Paul Bland, executive director of Public Justice, as saying that the arbitration clause was poorly drafted as Ailes appears to be a non-party. Any of our arbitration gurus have an opinion about this?

This case seems somewhat similar to the controversy about Anita Hill’s allegations of sexual harassment against Clarence Thomas. Ailes tries to discredit Carlson, noting that she had praised him and wanted to stay with the network.  Several female Fox personalities have issued statements supporting Ailes and denying sexual harassment.  And other women have now claimed that Ailes had harassed them.

If Carlson does bring a case against Fox, the following collection of video clips of her co-hosts on Fox and Friends seems like a painful textbook illustration of a hostile work environment.

Given the high profile of the parties and sensational allegations, we will probably hear a lot more about this case.  Hopefully, it will provide a valuable reminder about the serious problem of sexual harassment, which unfortunately still continues.

5 thoughts on “Will Gretchen Carlson’s Case Against Roger Ailes Go Through the Courts, Not Arbitration, Because of Sloppy Drafting?”

  1. Bland’s comment sounds right to me. This could ultimately go either way. Some courts are amazingly willing to apply arbitration clauses to folks who would seem to be non-parties. They sometimes use a broad array of contract doctrines to achieve this end (waiver, estoppel, etc.). But, other courts are less willing to stretch contracts in this way. And, had Fox drafted differently they could have improved their odds of keeping this dispute in arbitration.

  2. The New York Times published an interview of Gretchen Carlson which illustrates employees’ Catch-22 situations when they have grievances with their employers.

    Carlson said that she had six to ten meetings with Roger Ailes to complain about sexual harassment. Fox responded that she never filed a formal complaint with the HR or legal department. One Fox employee questioned why Carlson waited until she was forced out to file a harassment lawsuit.

    Duh. Especially when there is a hostile work environment, filing a formal complaint – and certainly filing a lawsuit – is likely to be a kiss of death for employees. Even making informal complaints can put their jobs and future employability at risk.

    This ThinkProgress article cites a recent EEOC report stating that the “least common response to harassment is to take some formal action.” The article continues, “Less than a third of people who experience harassment talk about it with a supervisor or union representative. A much smaller share take any legal action. The vast majority instead try to avoid their harasser, deny or downplay what happened, or endure or forget the problem.”

    If Carlson’s allegations are true that she made repeated informal and legitimate complaints that were rebuffed, Ailes and Fox should face substantial liability.

    At this point in our history, it is sad but true that despite changing social values and institutional self-interest, too-frequent news reports document that egregious sexual harassment persists in many organizations.

    For employment dispute resolution systems to work properly, employees must feel that the employers are open to hearing complaints fairly and will not retaliate. While EEO law provides some protection, many employees understandably are wary of being seen as “troublemakers.” So it is a real challenge to design effective dispute systems.

  3. Update: NYT article going into some detail about legal options re court and arbitration.

    As comedian Jimmy Durante used to say, everybody wants to get into the act.

    Presidential candidate Donald J. Trump initiated arbitration against a former campaign consultant, Sam Nunberg, who allegedly violated a non-disclosure agreement by disclosing an affair between Trump’s campaign manager and spokesperson, among other things. Trump seeks $10 million from Nunberg.

    Nunberg filed a motion in state court in New York to have the case heard in court.

    In both the Carlson v. Ailes (Fox) and Trump v. Nunberg cases, powerful public figures are trying to use arbitration to prevent disclosure of matters of public interest.

    Stay tuned.

  4. Gretchen Carlson, who sought to avoid arbitration by filing a lawsuit against Fox News CEO Roger Ailes but not against Fox, published an op-ed in the New York Times about ending sexual harassment.

    She argued that “companies should not be allowed to force employees to sign contracts that include arbitration clauses under which all discrimination disputes, including sexual harassment claims, can be resolved only in a secret proceeding. Women who are unaware that other women have come forward are less likely to speak up themselves. Secrecy silences women and leaves harassers free from accountability.”

    She also wrote that we “need to revisit the issue of whether human resources departments are the right places for victims to go to lodge a complaint. Can women feel safe telling their stories to H.R. employees who are hired by the same company executives who may be implicated in the harassment?”

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