Gretchen Carlson is fighting to end forced arbitration in age discrimination lawsuits

Gretchen Carlson was originally known for asking fiery questions on Fox News in the 2000s. That changed when, in 2016, she tried to file a sexual harassment lawsuit against her boss, Roger Ailes, and found she was bound to a forced arbitration clause in her contract.

That realization changed the trajectory of her career. Carlson became familiar with the problems associated with forced arbitration policies, and how they impact workers. In 2019, she and Julie Roginsky, a former Fox News contributor who also alleged harassment, founded Lift Our Voices, a nonprofit working to end workplace discrimination.

Now, with a successful civil lawsuit against Ailes, and two new federal laws that ban forced arbitration and pre-dispute NDAs for workplace sexual assault and harassment cases, Carlson wants to end forced arbitration for age discrimination lawsuits.

Forced arbitration 101. The Federal Arbitration Act of 1925 initially stipulated that consumers and employees with a complaint would work through back channels to resolve disputes. However, the law has gained more power in the last four decades, thanks to a loophole upheld by the Supreme Court, allowing employers to avoid litigation and instead work with arbitrators they’ve retained.

More than one in three workers are currently bound by NDAs and 60 million work under forced arbitration rules, according to Lift Our Voices, often unknowingly, said Carlson. There were more than 90,000 forced arbitrations in 2022 (a 467% increase from 2021), but consumers and employees won just 0.7%, according to the American Association for Justice.

“These arbitrators tend to find in favor of the companies,” Carlson told HR Brew. “There are no appeals and most of the time complainants do not win.”

Rare bipartisan support. In the winter of 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act and the Speak Out Act, which aim to prevent employers from enforcing NDAs when employees report sexual harassment.

“My two cosponsors for the bills, Senator Kirsten Gillibrand—Democrat, New York—and Senator Lindsey Graham—Republican, South Carolina—were sitting in the front row next to each other, and Senator Gillibrand said to Senator Graham, ‘Hey, what are we going to tackle next?’” Carlson recalled. “And he chose age.”

Some 78% of older workers say they’ve witnessed or experienced age discrimination at work. Lift Our Voices and advocates including AARP are working with Congress to pass the Protecting Older Americans Act, banning forced arbitration in age discrimination suits. Carlson testified in front of Congress earlier this month, explaining why the practice must end. The Senate Judiciary Committee will vote on the bill before it can move to the Senate.

Some opponents believe the law could lead to frivolous lawsuits, said Carlson, while others say that arbitration is cheaper and easier for workers experiencing discrimination. Carlson disagrees with this claim.

The battle at corporations. While forced arbitration can protect businesses, Carlson sees a rift developing between executives.

“There’s a conflict inside companies between HR executives and other C-suite executives,” she claimed, adding that HR executives may prefer to eliminate forced arbitrations. “A lot of them feel like they shouldn’t have to be dealing with these issues.”

Since 2017, companies including Airbnb, Google, and Microsoft have stopped using forced arbitrations in employee disputes. Carlson hopes other companies follow suit and change their policies before more NDA and forced arbitration laws take effect.

An equity issue. Approximately 90% of harassment survivors never report their workplace abuser, according to Lift Our Voices, and forced arbitration impacts traditionally underrepresented and marginalized groups. Almost 58% of women and almost 60% of African American workers are subject to these clauses, and Carlson believes ending the practice is a DE&I issue.

“Our work is actual work of substance with regard to DE&I,” she said. “We believe [that] getting rid of the silencing mechanisms in the workplace [like] forced arbitration and NDAs is the silver bullet to all equity.”

She believes ending the practice will help employers retain women and BIPOC employees, which is good for business. “Even if you only care about money, as a leader you should want to get rid of silencing mechanisms.”

Looking ahead. Anyone who thinks Lift Our Voices will stop at ending age discrimination arbitration would be wrong. “Every protected class deserves to not be silenced, so we’re chipping away at the system one class at a time,” Carlson said.

The organization is developing a rating system that would publicly share which companies use forced arbitrations and NDAs—valuable knowledge for employees and job-seekers.

“It’s not like you aspire to become the poster child for something like this,” Carlson said, reflecting on her experience and advocacy work. She often thinks about the thousands of people she has helped already, and creating better workplaces for her children.

“In a really horrible situation, I rolled up my sleeves and got to work. And a lot of that came from the amazing people who reached out to me who had all been silenced.”