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There are some employment contracts that make it difficult for harassment victims to find out about one another and make claims together. Many people sign these clauses without knowing it. NPR's Yuki Noguchi has been looking into this.
YUKI NOGUCHI, BYLINE: When former Fox News anchor Gretchen Carlson came forward and accused her boss, the late Roger Ailes, of sexual harassment, she did so in spite of a clause in her employment agreement requiring her to resolve workplace complaints through private arbitration. Emily Martin, who is general counsel at the National Women's Law Center, says Carlson found a way around that by suing Ailes personally in court.
EMILY MARTIN: She and her attorney found a creative area around her arbitration agreement so that she could make her story public. And obviously that led to a lot more dominoes falling.
NOGUCHI: Her co-workers might never have come forward, Martin says, had Carlson not had the will, resources and high profile to take her case public. Carson's case is unique in many ways, but Martin says it lays bare why contracts that require individual arbitration are such a problem.
MARTIN: If an arbitration agreement and its related confidentiality provisions had been enforced, it would not come to light.
NOGUCHI: Workers' rights advocates worry that will happen if the Supreme Court sides with employers, as many legal experts believe is likely. The three cases before the court ask whether a worker has a fundamental right to face arbitration with other workers or if that right can be waived when workers sign employment agreements. What the court decides could affect any workplace claim - wage disputes, discrimination, as well as harassment. The cases do not address issues of confidentiality and arbitration, but workers' rights advocate Catherine Ruckelshaus, the general counsel of the National Employment Law Project, says that issue is closely related.
CATHERINE RUCKELSHAUS: The problem with private arbitration, especially when you have to go it alone, is that you cannot share information, facts that you would otherwise get in a discovery of a regular case.
NOGUCHI: She says recent cases highlight how perpetrators often continue their behavior when victims are kept in silos.
RUCKELSHAUS: If you lose the ability to show the pattern and practice, then the patterns and practices are going to continue.
NOGUCHI: Employment arbitration agreements are increasingly popular as employers try to keep cases out of court. It's estimated between 30 to 60 million American workers have signed one.
DAVID LOPEZ: I am sure that many of your listeners have signed class-action waivers without knowing it.
NOGUCHI: David Lopez is former general counsel for the Equal Employment Opportunity Commission. I reached him at a restaurant. He says recent stories show how collective action might have stopped problems sooner.
LOPEZ: The women who suffered subsequently would not have suffered. You would have been able to address those issues out of the box instead of to bottle it up confidentially and allow it to happen time and time again.
NOGUCHI: Employers argue they have no interest in aiding and abetting bad behavior. Christopher Murray is an Indianapolis attorney representing management.
CHRISTOPHER MURRAY: I disagree with the idea that a lot of employers have any interest in silencing. I don't see that as a mission of a typical employer. The values of arbitration are the ability to get a quicker decision, and overall maybe a cheaper way to litigate disputes than you might have in court.
NOGUCHI: Wendy McGuire Coats, another management attorney, says most arbitration agreements still leave room for victims to speak out or hire the same attorney.
WENDY MCGUIRE COATS: The arbitration agreements don't keep people from saying to other people around them that they have a complaint or coming forward to HR and complaining.
NOGUCHI: Coats says sexual harassment claims are often ill-suited for collective action anyway because they often involve different evidence and circumstances. The Supreme Court's decision is expected by the summer. With President Trump's appointee Neil Gorsuch on the bench, most legal experts expect the court to uphold individual arbitration agreements. Yuki Noguchi, NPR News, Washington.
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