Opinion: Carlson & Roginsky: Ban arbitration and give workers back their voices
By Gretchen Carlson and Julie Roginsky / NJ.com
Two former Fox News employees, who sued their employer, say they support Senator Cory Booker's bill, which bans forced arbitration for those who experience racial discrimination in the workplace. It expands on legislation they helped put in that bans forced arbitration for employees who were sexually assaulted or sexually harassed.
Imagine hearing racial slurs from your boss over and over and going to work with a knot in your stomach because you must endure the most despicable behavior from someone who pays your bills. You gather evidence and finally build up the courage to complain to HR — only to be told that you signed a clause buried deep in your onboarding paperwork years earlier that prevents you from suing your boss or the company or even from discussing what is happening to you with anyone else.
Instead, you are shunted off into the secret chamber of arbitration, a process where an arbitrator, typically a white man who looks nothing like you, adjudicates your claims. The arbitrator will often have previously resolved cases for your company and understands that he may get repeat business if he decides in its favor. Because arbitration is conducted privately, your co-workers will never know that this is happening to you, even as it may also be happening to them.
The deck is stacked against you from Day One — and you don’t even know it.
One year ago, we stood in the East Room of the White House as President Biden signed our Ending Forced Arbitration for Sexual Assault and Sexual Harassment Act into law, signaling the beginning of the end for organizations that seek to cover up workplace misconduct by any means possible. That day marked a watershed moment in the fight for a more respectful American workplace. For the first time, our federal government acknowledged that forced arbitration agreements deprive survivors of their day in court, while promoting institutional protection for predators.
This week, Congress took another important step in leveling the playing field for workers when Senator Cory Booker introduced the Ending Forced Arbitration for Race Discrimination Act, which expands on our law by banning forced arbitration for survivors of workplace racial discrimination.
Studies show that Black workers are much more likely to be forced into arbitration than others. Nearly 65% of all workers who make $13 per hour or less must arbitrate their claims. It is no coincidence that workers of color are much more prone to earning poverty wages — and much more likely to be forced into arbitrating their claims, rather than suing for misconduct in open court.
Organizations know what they are doing when they shove their workers into the secret chamber of arbitration. When survivors find out that they must arbitrate their claims, most simply give up. According to the American Association of Justice, just .02% of employees subjected to arbitration even attempted to pursue their cases over a five-year period.
Who can blame them? Fewer than one-ten-thousandth, or 0.0001, of 1% of covered workers received financial compensation in arbitration during the same period. Many employment attorneys will refuse to take on a client who is bound by an arbitration agreement – even when that client has irrefutable evidence of wrongdoing – because they know too well how unlikely it is for that survivor to receive justice.
Elected officials in both parties should join Senator Booker’s efforts to make the American workplace safer. So should businesses. Studies show that greater diversity in the workplace the better the company’s profits. Yet far too many companies force their workers of color out by driving them into arbitration, perpetuating a toxic cycle and covering up unacceptable behavior.
Make no mistake: the tide has turned in favor of giving workers back their voices. The fight to ban arbitration for discrimination will one day become law. Members of Congress and businesses should get on the right side of history now and support Senator Booker’s courageous efforts. American workers have waited long enough.
Gretchen Carlson is a journalist, author and advocate whose actions against workplace harassment at Fox News helped pave the way for the global #MeToo movement.
Gretchen Carlson is a journalist, author and advocate whose actions against workplace harassment at Fox News helped pave the way for the global #MeToo movement.
Julie Roginsky is a political and public relations consultant who sued Fox News for sexual harassment and retaliation. Since leaving Fox News, Carlson and Roginsky co-founded the nonprofit Lift Our Voices.
BY GRETCHEN CARLSON AND JULIE ROGINSKY, May 8th, 2023