Gretchen Carlson Tells Congress to “Take an Extra Look” at Mandatory Arbitration
By Sean Lally, Staff Writer
According to a recent Star Tribune report, on Tuesday March 7th, Gretchen Carlson, former Fox news anchor, spoke to Congress about her inability to go to trial for sexual harassment charges against former Fox News executive, Roger Ailes. She focused on something known as a Mandatory Arbitration clause that can sometimes be found in employee contracts. Clauses such as these force people like Carlson into “black box” hearings where arbitrators are chosen by the corporation and are thus incentivized to rule in favor of business defendants. In Carlson’s words, an arbitration clause “silences survivors of sexual harassment.”
Democrats such as Senator Al Franken, who heard Carlson speak, are currently trying to introduce measures that would allow employees affected by arbitration clauses to get time in an actual courtroom. Those who oppose the Democrats, such as the US Chamber of Commerce, suggest that overriding arbitration clauses would be a “gift to plaintiffs’ lawyers.” They had little to say of the actual victims or of the Seventh Amendment to the US Constitution which guarantees all citizens a right to trial by jury in all matters of common law where the amount in controversy exceeds $20.
Carlson is Not Alone
According to the Star Tribune, Kevin Ziober also spoke to Congress. He suffered similarly in 2012 when he was fired for being deployed to Afghanistan that same year. Later, he attempted to sue the company because federal law protects employees from being fired for US military deployment. A federal appeals court ruled in favor of the company due to the contract that Ziober signed. This wasn’t the first time federal courts made such a ruling. Corporations started including arbitration clauses in 2013 after a Supreme Court Case upheld the legality of these clauses, essentially stating that you can contractually sign away your Seventh Amendment right to a jury.
Some Background on Mandatory Arbitration Clauses
According to Michael J. Swanson of Advocate Capital, Inc., it’s almost impossible to appeal arbitration cases, as they stand now. What’s worse is that a government survey shows that 75% of consumers aren’t aware that arbitration clauses exist in cell phone contracts, nursing home contracts and bank checking account agreements, among others. Furthermore, according to Swanson, arbitrators favor corporations. According to a 2011 government study, only 7 percent of plaintiffs won cases in arbitration.
According to Larry Bodine, corporations argue that “they use arbitration clauses to save on litigation costs so they can pass on the savings to consumers.” However, in the words of Bodine, “This is total B.S. The CFPB [Consumer Financial Protection Bureau] found no evidence of arbitration clauses leading to lower prices.”
The Fight to Come
With a system that slants toward corporations, the work of Democrats like Franken and activists like Carlson is pivotal for making legislative reform in favor of consumers and employees. Carlson told Congress that she hoped they “would take an extra look this time around, because specifically around the issue of sexual harassment, the floodgates have been opened.” She added, “I really do think life works in mysterious ways, and this has become my mission.”
Of course, it will be an uphill battle for people like Franken and Carlson, as the Republican Congress will surely make it very difficult to pass measures that protect consumers or employees against big corporate interests.
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