Trial Magazine

Gretchen, what motivated you to become a vocal opponent of forced arbitration and to share such a personal journey publicly?

GC: All the thousands of women who reached out to me after my story came out, which I never could have predicted. Harassment is a pervasive epidemic across every socioeconomic line and every profession.

The stories were all the same: Nobody believed me, nobody helped me, I was labeled a troublemaker and worse, I was fired from my job and blacklisted or demoted, and I never worked again in my chosen profession. It is outrageous that in 2018, you have thousands of women who have lost the American dream simply for having the courage to come forward.

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"When I started out as a lawyer, I didn't have to say, 'Let me see your contract. Did you sign an arbitration agreement?' Now I have to say it in every case."

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Nancy, as an employment lawyer, how often do you see forced arbitration in your cases?

NS: When I became a lawyer in 1980, I didn’t see it at all. Now, more than 60 million employees in ­non-union private sector jobs are covered by forced arbitration agreements in the United States. When I started out as a lawyer, I didn’t have to say, “Let me see your contract. Did you sign an arbitration agreement?” Now I have to say it in every case, and in at least 10–20 percent of those cases, people have signed forced arbitration agreements and don’t even know it. It’s in a packet with a bunch of information about how much tax withholding you want taken out, and the kind of medical care you want, and here’s our confidentiality agreement, and here’s our discrimination and harassment policy. You’re going through all of this paperwork, and you’re excited about a new job, and you don’t even know that you’ve given up your constitutional rights.

Is forced arbitration part of a larger pattern of employers disregarding workers’ rights?

NS: Forced arbitration definitely affects workplace culture because people think they’re alone. Gretchen often says that on July 6, 2016, she jumped off a cliff alone. She didn’t know that other women were going to come forward bravely and say that this very famous and powerful man harassed them as well—or worse, assaulted them. It’s very scary to take on your employer.

If forced arbitration and nondisclosure agreements hadn’t silenced women for so many years, Roger Ailes never would have been there to harass Gretchen or many of the other women. Forced arbitration and the surrounding secrecy totally enables harassers—especially serial harassers and abusers—to thrive in the workplace, and it isolates women and makes them live in fear and think they’re alone—and they’re not.

GC: When the company knows that it can hide its dirty laundry behind forced arbitration, the power is all in the hands of the harasser. But when you give employees the ability to have a voice, harassers may think twice about harassing because now they know it can’t be shoved into a secret chamber. In a way, by getting rid of forced arbitration, especially in these types of cases, you might help to solve the underlying problem as well.

What are some consequences of not being able to bring these claims in open court?

NS: You can see the effects in recent high-profile­ cases. For example, Fox settled with women who were harassed because it knew that most of those women would be forced into arbitration, and they’d be silenced with nondisclosure agreements. The secrecy is the key; the secrecy is what allows them to feel like they can continue this behavior.

GC: If the victim has to go into this secret chamber of forced arbitration, the company will never have to hear from her again because she can never tell anybody what happened—and likely can’t work ever again in her field either. Forced arbitration limits choices in the workplace about how you can bring your case forward. If you are a victim of discrimination or harassment, you are forced into only one path—and that isn’t fair.

NS: Frequently, the employer starts the arbitration to prevent employees from doing anything publicly. They’re in arbitration before they realize what happened.

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"Sexual harassment is an apolitical issue, which is why it's so important for both parties to come together to fight it. When I meet with members Congress, that's what I say to them: 'Do you want to be on the right side of history or the wrong side?'"

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Gretchen, you’ve been a strong advocate of the “Ending Forced Arbitration in Sexual Harassment Act.” Why do you support the bill, and what do you hope it will accomplish?

GC: The bill is narrow in the sense that it’s only about sexual harassment cases and forced arbitration. It needs to be a bipartisan effort. Sexual harassment is an apolitical issue, which is why it’s so important for both parties to come together to fight it. When I meet with members of Congress, that’s what I say to them: “Do you want to be on the right side of history or the wrong side?”

It was a huge accomplishment to have the bipartisan bill introduced in the House and the Senate on the same day. I’m learning a lot about passing legislation, and it’s not an easy feat. Getting it introduced was a huge hurdle. Now we need as many cosponsors as possible to come on board from both sides, which will help get it passed. If passed, the legislation will allow women and men facing harassment to have a voice and—hopefully—end harassment for our next generations.

I’ve also been in California speaking with members of the state legislature—and the bill I’ve been advocating for to prohibit arbitration agreements in employment contracts recently passed there (A.B. 3080). [Editor’s Note: Gov. Jerry Brown vetoed this bill on Sept. 30, 2018.] States and local communities can do a lot of work on this issue too. It’s really important to see it percolating up from the state level because it puts pressure on Congress to pass the federal legislation.

NS: One way that state laws can help is that they make it very hard for the U.S. Supreme Court to claim that public policy favors arbitration. Nowhere in the Federal Arbitration Act does it say that it preempts state law or that public policy favors arbitration. It’s written into the act by judges. It’s completely manufactured. And it’s going to be harder to say that when the largest and the most populous states say, “It’s not our public policy; it’s the opposite of our public policy.”

What effect do you think this expansion of forced arbitration has had on citizens’ rights?

GC: The overarching argument is that when the Supreme Court first upheld arbitration, the intent was not to shroud human decency and human rights violations under arbitration. It was to unclog the court system from too many small business disputes. I don’t think the intent was ever to put these types of cases into secrecy, but that’s how companies have used the law to their advantage.

NS: Corporations have worked very closely with arbitration providers, which have turned into industries in and of themselves. They created the rules on confidentiality and secrecy. It’s nowhere in the law. It’s not even in any Supreme Court opinion. It’s completely made up by the corporations that administer arbitration for other large corporations. Corporations want secrecy, so the administrators sell secrecy.

How does forced arbitration reduce access to justice?

NS: The Declaration of Independence and the U.S. Constitution recognize that a jury trial is the best way for all people—not just the powerful—to achieve justice. Forced arbitration limits access to information for the employee because the employer has all of the documents, emails, and access to coworkers. The rules of evidence don’t apply. There is no appeal—even if the arbitrator fails to follow the law. The arbitration system is rigged in favor of employers and against victims of harassment, discrimination, and retaliation.

The corporate arbitration providers have imposed secrecy on the process, so the public is in the dark about wrongdoers and their misconduct. The public is damaged by not being informed about the behavior of corporations they may have chosen not to patronize. In the case of whistleblowers, the public is further damaged by not being made aware, for example, of unsafe products in the stream of commerce, or dangerous pollution, or financial fraud.

What would you say to people who are being sexually harassed in the workplace?

NS: Know your rights. Know if you’re in a state where you’re allowed to tape record your harasser. Tape recordings are incredible evidence. In some states, you cannot tape record your own interactions with somebody, and therefore, the best evidence of harassment is lost.

You need to know what the law is in your state. For instance, in many states, there’s no state anti-harassment law, and you have to quickly file an Equal Employment Opportunity Commission charge with a federal agency that’s like a black hole. You need to know what to do and have a strategy. You should talk to a lawyer. The company probably will minimize or discourage you from making a claim.

GC: You always need a plan. Many times, victims put up with the behavior and then one day go to complain without having thought it through. You must have evidence and witnesses and a plan for moving forward.

Do you have advice for people about how to advocate for themselves and help stem the tide of forced arbitration?

NS: Vote for legislators who support banning forced arbitration. Vote for the legislators who support workers’ rights.

GC: A lot of young people have asked me that same question. Millennials and Gen X’ers tend to work together—men and women—incredibly well, and they like to see a common good. I have great hope for those two generations to take on this issue and work on fixing it. One thing to do is to support our legislation. When you get into the workplace, go en masse to HR and tell them you don’t want arbitration clauses in contracts anymore and that you want to change the way they conduct sexual harassment training. The training shouldn’t just be about what sexual harassment is—it should be about how you can encourage people to come forward when they witness or experience sexual harassment.

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"People just don't know enough about this issue, and they have no clue that they've given up their Seventh Amendment rights simply to go to work every day."

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Sometimes when we talk about forced arbitration, people don’t understand the implications. The more that we can continue to educate people about it, the better. When I talk to a room full of people, I ask: “How many of you know if you have arbitration clauses in your work contracts?” Nobody raises their hands. It’s one of my goals and one of the reasons that I stay fired up to keep doing this—not only to change the laws but also to educate the public about it. People just don’t know enough about this issue, and they have no clue that they’ve given up their Seventh Amendment rights simply to go to work every day.