Ducks in a Row: Power And Arbitration
by Miki Saxon
In response to a post by Ellen Pao in September I said I wasn’t holding my breath waiting for things to change.
Good thing I wasn’t.
What changed started with a post by Susan Fowler calling out Uber’s misogamist culture, which led to CEO Travis Kalanick’s firing, Gretchen Carlson sued roger Ailes and won, other women started coming forward with their own stories and then the entire #metoo thread on Twitter.
Next came the harassing men crying crocodile tears and saying how terribly sorry they are if their past actions caused any pain.
Talk about arrogant, unfeeling, ignorant, and purely self-focused.
Monday Sheryl Sandberg wrote an excellent post pointing out that harassment has nothing to do with sex and everything to do with power.
The 1992 presidential race was once summed up in a pointed phrase: “It’s the economy, stupid.”
Today, as headlines are dominated by stories about sexual harassment and sexual assault at work, a similar phrase comes to mind: “It’s the power, stupid.”
And that nothing would change until the white male power structure became more balanced.
She goes on to say,
It is my hope that as more employers put thoughtful, effective policies into place – and as more is done to punish the perpetrators – more people will come forward without fear. For too long, too many people have believed that there’s no point in reporting harassment – that nothing will happen, or worse, that it will negatively impact their career. And on the other side, some people are scared that their reputations will be ruined unfairly. Having a consistent and fair process that applies to everyone helps protect against both scenarios and restores a degree of faith in the system.
However, I don’t believe anyone has much faith as long as they are forced to take harassment complaints to arbitration.
A growing number of American companies are requiring workers as a condition of their employment to sign agreements that stipulate they must resolve a dispute with their employer through arbitration. This agreement is known as a mandatory arbitration clause.
It was Carlson whose lawyers found a way around it.
In signing her employment agreement 11 years prior, Carlson had agreed to resolve disputes with Fox News Channel through private arbitration. But she and her legal team found a way around this by suing Ailes personally.
But, as Sandberg says, you need to have a certain level of power to even consider moving on someone with more power — and enough money that you can survive for a while sans paycheck.
Private arbitration is good for companies, since the rules favor businesses and most arbitrators think of the companies as clients — and who bites the hand that feeds it?
Moreover, the results aren’t published, so, there is little blowback even in the rare cases when the company loses.
“This veil of secrecy protects serial harassers by keeping other potential victims in the dark, and minimizing pressure on companies to fire predators,” Carlson wrote for The Times.
The Arbitration Fairness Act of 2017, which is before the House Judiciary Committee and for which Carlson is an advocate, would prohibit employers from requiring arbitration.
But considering the men who make up our current Congress, let alone the current president who would have to sign it into law, I certainly won’t be holding my breath for this one, either.
Flickr image credit: caninhas
