Gretchen Carlson Refuses to Be Silenced

From Harper's BAZAAR

For our 2019 Women Who Dare series, Gretchen Carlson calls up Senator Kirsten Gillibrand to discuss the prevalent—but little known about—arbitration clauses in employment contracts, how they protect harassers and muzzle sexual assault survivors, and why we need to abolish them for good.

Gretchen Carlson: Before we get started, I just wanted to thank you for running an amazing presidential campaign.

Senator Gillibrand: I did my best [laughs]. I just couldn't break through. I did my best.

Gretchen Carlson: You did! Congratulations for being out there and doing all that you're doing. Now, we're going to talk about arbitration ...

Senator Gillibrand: Very excited.

Gretchen Carlson: You and I have been in the thick of this for quite some time. We introduced this bill, the Ending Forced Arbitration of Sexual Harassment Act, together in December 2017.

Senator Gillibrand: As you already know, because you have lived it, we have been fighting about changing the law so that when people get harassed at work, when they have a boss or a colleague who is constantly harassing them on the basis of their gender, that they don't have to restrict where they can take their claim. Right now, most employment agreements—and people don't even realize they're there—have these forced arbitration clauses as well as nondisclosure agreements set into their employment contract.

When they start working, [employees] just don't even know that they're bound by these. What we found is that when you do come forward because you've been harassed and are forced into arbitration, a number of things happen. Typically the landscape isn't as good as a trial would be. Typically a trial results in more convictions and much higher rewards for harassment in terms of actual financial compensation, but if you have to go through arbitration, you're likely to get a smaller award and you might not even win. It's sometimes an opportunity to be out-lawyered. The companies typically have disproportionately more power than you as an employee does.

What our bill would do is end forced arbitration. It would void forced arbitration agreements that prevent sexual harassment survivors from getting the justice they need. So it would be just across the board void, and that would allow more people to go to court if they want to be heard by a jury of their peers.

Gretchen Carlson: Exactly. The other thing is you don't get the same amount of witnesses in arbitration. You don't get the same amount of discovery. The worst thing that I think happens is that the woman or the man, if the man happens to be a victim, is silenced forever, and the perpetrator gets to stay on the job because nobody knows about it.

Senator Gillibrand: Right. That's exactly the worst thing. Then because of the non-disclosure agreement, you can't even tell your colleagues. You can't tell your girlfriends at the workplace, like, "Avoid that guy because this is what he did to me." It's really hard because it allows perpetrators to stay in place to continue to harass. It's very problematic.

Gretchen Carlson: The other thing I really want to point out, Senator, is that this isn't a political issue. This is why we were so dead set on making sure that this was a bipartisan bill. Because when I've been walking the halls of Congress for the last two and a half years meeting with Republicans and Democrats, somebody doesn't ask you what political party you're in before they harass you. That's why everyone should all care about this. Also, you know this so much better than I do, the idea of trying to actually get something passed, it has to be bipartisan, right?

Senator Gillibrand: Correct. It must be. One of the first people you spoke to about what happened to you was [Republican] Lindsey Graham. When Lindsey approached me two years ago and said, "Can you work on this with me?" I jumped at the chance because I knew from a lot of the work I do in the sexual assault and sexual harassment space, that these agreements are so prevalent. About 60 million American workers don't have access to a public court system to basically protect their employment rights and are instead forced to go to arbitration. That's why Senator Graham and I are going to keep working on this bill. I'm optimistic we can get a bipartisan coalition. If we can convince Senator McConnell to have a vote, we would prevail.

Gretchen Carlson: I agree because, as you know, the Fair Act, which is a much bigger arbitration bill, and much more all-encompassing, passed in the House about a month ago. That was, I believe, the first time that the issue of arbitration ever went to the House or the Senate floor.

Senator Gillibrand: Yes. That bill basically eliminates forced arbitration clauses in employment, consumer and civil rights cases, and it allows consumers and workers to agree to arbitration after a dispute occurs if they want. It's very broad-based and it overwhelmingly passed, 225 to 186. I'm hoping we can get it up for vote now in the Senate. Senator Blumenthal and I and 32 other Democrats support the bill, but we don't have a Republican on that one. Our bill is supported by a lot of national advocacy groups. It's supported by the AFL–CIO. It's supported by Public Citizen, Impact Fund and National Women's Health Network, Microsoft, American Association for Justice, so lots of organizations and companies do support it. We just need to keep elevating the voices of survivors so they can tell people what happened to them because a lot of people don't realize how prevalent it is.

Gretchen Carlson: Why aren't more Republicans supporting our bill yet?

Senator Gillibrand: They will. I think probably the Chamber of Commerce is being difficult because the Chamber just wants to do whatever they perceive as pro-business. But they're wrong. It's so much more pro-business to make our workplaces safe and effective for all workers. It is so much better to kick the harassers out, not the workers who were being harassed. If they were smart, or smarter, they might recognize that the best pro-business approach is to get rid of non-disclosure agreements and get rid of forced arbitration clauses. We do have good allies, so I'm going to work with Lindsey and [Republican] Senator Lisa Murkowski, who's also on our bill, to get more Republicans to care.

Gretchen Carlson: You mentioned Microsoft. One of the really important points is whether or not companies would do this on their own and not be forced to with federal legislation. An interesting story is that the president of Microsoft met with Lindsey Graham after we introduced the bill in 2017 and decided at that point to take arbitration clauses out of their employment contracts. We saw this domino effect in the tech world where you had Airbnb, eBay, Uber, Lyft, Facebook (who originally lobbied against our bill), and eventually Google...

Senator Gillibrand: Yes, Google started to end forced arbitration for its current workers in March of 2019 and this is a good step forward, but the new rule still doesn't apply to their temporary workers, vendors, and contractors. There's more work to be done so we have to just keep moving. If they can apply it to their current and future employees, they should also be able to apply it to their temporary workers, vendors, and contractors.

Gretchen Carlson: Right. I was hopeful that there would be more of a domino effect after those big companies started stepping up to the plate. I'm interested in your thoughts about whether or not other companies just believe that this is sort of a passing fad and a passing movement and that they don't really have to take these steps unless we forced them to with legislation. If I was running the company it would be very simple to do the right thing. The bill is so narrow, it's only about sexual harassment and arbitration, it's not saying that we have to give up arbitration for everything else.

Senator Gillibrand: Most tech companies are run by men, so they aren't necessarily attuned to the issue, and there are not as many examples as we'd like of people standing up and being successful in holding their employer accountable. I think Silicon Valley is a very tough landscape for women. They are routinely discriminated against in the workplace and it's really hard to be heard in that kind of climate. We do have a couple of other good leaders: Intuit and Adobe have also stopped using forced arbitration agreements. Slowly but surely, it is catching on.

Gretchen Carlson: You're right. To be honest with you, men don't think about these things, it s is not on top of mind to them. It's all mixed in with paying women fairly, promoting more women, hiring more women, putting more women on the board; it all works into this whole same system. Because first of all when you have more women in power, you don't have sexual harassment as much, that's the first thing. When I started talking about this issue, I would usually get a glazed-over look from people in the audience, because when I would ask for people to show their hands if they knew if they had an arbitration clause in your employment contract, nobody would raise their hand. This is the way in which companies have been able to make it so prevalent because they hoodwink their employees. Employees don't even realize that they have these clauses in their contracts. And people don't expect to get into any kind of a dispute when they start a new job. I know I didn't.

Senator Gillibrand: No, you're just so excited you got your job. It's one of the reasons why we really have to get the legislation passed. It shows that we cannot wait for corporate America to catch up with the rest of the world, and we can't leave it to their good graces. Because the truth is, there's so many employers who will never change their rules, and we know millions of people are going to suffer because they can't get out of that forced arbitration clause.

Gretchen Carlson: I want to just pick your brain from a legal perspective, because the other really important reason that we should eradicate this specifically for harassment cases, is because we've lost all legal precedent on this issue by putting all these cases into arbitration. There are no court cases to be able to go back and look over the last 20 to 25 years and say, "Well, this is how we're going to rule now based on precedent." Right?

Senator Gillibrand: Correct. It's hurt jurisprudence, it's hurt our ability to create a record, and even outside the law, it hurts our ability to create a record about harassers themselves, because these arbitration clauses are paired with these non-disclosure agreements, these gag orders. You can't even tell the story of what happened to you, unless you want to breach your agreement and be open to being sued. Some people do it anyway because they're brave, and they want justice, and they want to be heard, but the law is not supporting them right now because there are just all these employment agreements that are written in a very negative way.

Gretchen Carlson: There's no way for us to know, Senator, how many women have been forced into arbitration for harassment cases. There's no way for us to really know how many women have signed settlements with non-disclosures, regarding harassment in the workplace. I can get a general sense from the thousands of women who reached out to me after my story broke at Fox, but it's for sure thousands. I don't know. It could be a million women in our country.

Senator Gillibrand: Easily. We just did get a report. A not-for-profit called Stop Street Harassment did a survey in 2018, and in their survey, they found 38 percent of women said they had experienced sexual harassment in the workplace. Studies have found that the majority of victims of sexual harassment never even come forward to report the harassment. Another report said that as many as 75 percent of employees who report harassment experience some form of retaliation. Those who are sexually harassed are more likely to leave their jobs prematurely. It is tough. As you know, I've been working on sexual harassment, sexual discrimination, and sexual assault in the workplace for a long time. I've been focused in the military, I've been focused on college campuses, and now in all workplaces. This is really just the beginning of an argument and the beginning of a debate because the volume is unbelievable.

I don't think people fully realize how negatively it impacts women's ability to be successful in the workplace, to be able to stay in a business or profession they like, being forced out by a harasser, being retaliated against if you come forward. These are the kind of experiences I'm sure you've heard about anecdotally and people read about in the paper all the time. It's not new, and it's really harmful because it means more women are working for less money and not reaching their full economic potential in the workplace because they either have to change jobs or don't get advancement or opportunities because they're in a difficult workplace.

Gretchen Carlson: Completely. I would say 99.9 percent of the thousands of women who've reached out to me never work in their chosen profession ever again. I mean, that's outrageous.

Senator Gillibrand: That's the retaliation.

Gretchen Carlson: The retaliation is the most undersold part of this entire story. News media can be titillated with the sexual details of a harassment case but the reality is, it's the retaliation that actually does the most damage to your future career and to your mental health.

Senator Gillibrand: Agreed.

Gretchen Carlson: I think the biggest thesis for me is that, tell me if you agree with this or not, it seems to me that after the Anita Hill hearings, companies went on notice that they had to come up with sexual harassment training for their employees and they had to come up with policies for their institutions, but then they found this great little loophole called arbitration. They were able to use it for harassment, assault, gender discrimination, all of these human rights violations that arbitration was never intended for.

Senator Gillibrand: Never designed for. Yes. That's absolutely true.

Gretchen Carlson: It's a way to cover up a company's dirty laundry because you go to the secret chamber and you're never heard from ever again. That's what you and I are trying to change.

Senator Gillibrand: Without a doubt. And this is something we can change together. If more people who care about this issue, if more women run for office, support women candidates, lobby congress, and speak out, we can end sexual harassment in the workplace and we can regain our constitutionally provided rights to a jury. We just need to fight and I hope everyone takes time to speak to people that they know, women in the workplace, find out what their personal experiences are and then lift up voices as best you can. And really find allies in elected leaders who support your values.

We're going to have a very big election next year. It's an opportunity for all of us to be heard, both in the Senate and the House and through the presidency. It's disturbing we have a president who bragged about sexually assaulting individuals, assaulting and harassing women, and thinks that's okay. So, it's really a moment for women and men to be heard on this issue who have been harassed. It's an unseen crime but it's not an uncommon crime. I just hope people understand that our rights are important and they're worth fighting for and that we can get our allies everywhere we go to lift up the issue.

Gretchen Carlson: And abolishing arbitration laws will create more space to challenge society's tolerance of harassment and assault.

Senator Gillibrand: It allows the allegation of harassment to be brought out into the open. It allows to have juries decide these cases, to have courts of law decide these cases that are transparent. It's a better way to hold perpetrators accountable. It's a public system, it's not done in private. It's not done behind closed doors. Getting rid of both the forced arbitration and the non-disclosure agreements allows survivors to come forward and hold their perpetrators accountable publicly.

Gretchen Carlson: I think that the other effect of being able to know that you can go to an open jury process is that it might actually stop harassers from harassing, once they know that women have a voice in the system. They're like, "Oh, maybe I'll change my behavior." Potentially. I think that there's a dual effect there.

Senator Gillibrand: I also have to lift up your voice, Gretchen, because the truth is, you came forward and told your story in a time that it was really frightening to do so, at great risk to yourself. Your courage is going to inspire millions of more women and men to come forward when they're being harassed because you stood up to somebody who was absolutely part of the status quo and had enormous power, but you stood up and you wouldn't allow him to continue. Thank you for being so brave and courageous, and for speaking out for any person who's ever been harassed.

Gretchen Carlson: Well, I really appreciate those kind words. It's interesting because when you live your life and develop your resume, it's not like I one day thought to myself, "Wow, somewhere on my resume, I'll end up being one of the poster children for sexual harassment in the workplace." [Laughs] It's not something that you aspire to, but I've come through a journey and become stronger. The main thing now is to help other women.

Senator Gillibrand: And to not give up. It's really important that we don't give up because if we give up, who's going to protect the women who aren't able to come forward? There's a lot of women who don't have the resources, education, wherewithal to even begin to hold the harasser accountable and sometimes for those women, it's a choice of putting food on the table for their kids or sucking it up and dealing with harassment. It's for those women and men that you and I have to keep fighting, because they don't have the privilege of standing up to the harasser.

Gretchen Carlson: I totally agree with you, and that's why you and I both continue to work on this every single day. I really appreciate your time today, Senator. Thank you so much.

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