The New York Times explained that Gretchen Carlson’s Fox News contract -- which may bar the former network anchor from taking her sexual harassment lawsuit against Fox News CEO Roger Ailes to any federal court -- “could significantly impede [her]chances of prevailing.” 

On July 6, former Fox News host Carlson filed a lawsuit against Fox CEO Roger Ailes, alleging that he fired her “after she rebuffed Mr. Ailes’ sexual advances and also tried to challenge what she felt was unequal treatment of her in the newsroom by some of her male colleagues.” Carlson also alleged that while she was a host of Fox & Friends, her co-host Steve Doocy “engaged in a pattern of severe and pervasive mistreatment” of Carlson. Carlson has been a witness to years of sexism from her male colleagues, plenty of it directed at her. Several other women have come forward with complaints or contacted Carlson’s law firm to report similar experiences of mistreatment.

In a July 13 New York Times article, Noam Scheiber and Jessica Silver-Greenberg explained that Carlson’s “chances of prevailing” in her sexual harassment lawsuit could be significantly impeded because her Fox News employment contract requires employment disputes to be handled confidentially through arbitration, rather than in a federal court -- and “has much broader secrecy language than is common.” As the Times explained, arbitration “can obscure patterns of wrongdoing” because it is “conducted out of public view with no judge or jury.” Through arbitration clauses, employers like Ailes effectively “take[] away one of the few tools that workers have to fight harassment or discrimination.” The Times drew parallels between Carlson’s case and that of an American Apparel case, where a contractual arbitration agreement kept multiple sexual harassment allegations against former CEO Dov Charney “out of court” and “private,” to Charney’s legal advantage. 

When Gretchen Carlson sought her day in court with a sexual harassment lawsuit against Roger Ailes, her former boss at Fox News, Mr. Ailes’s lawyers had a quick response: Move the case to arbitration.

Experts and lawyers who have studied arbitration cases say that process, if enacted, could significantly impede Ms. Carlson’s chances of prevailing.

While arbitration is normally a secretive process, a typical plaintiff involved in arbitration would at least be able to speak publicly about his or her case. But Ms. Carlson, a former anchor who was let go last month, had a contract that makes the process even more secret, stipulating that “all filings, evidence and testimony connected with the arbitration, and all relevant allegations and events leading up to the arbitration, shall be held in strict confidence.”

“The clause has much broader secrecy language than is common in arbitration,” said F. Paul Bland Jr., an arbitration expert and executive director of the advocacy group Public Justice. “This clause explicitly put in gag-order language on all facts and evidence relating to these types of allegations.”

The use of arbitration has proliferated over the last decade, as a soaring number of corporations have sought to keep employment disputes private. That is because arbitration in general is a private process, conducted out of public view with no judge or jury. By using the arbitration clauses to bar people from joining together as a group, employers, both large and small, have effectively taken away one of the few tools that workers have to fight harassment or discrimination.

In a report issued just last week, the Equal Employment Opportunity Commission noted that forced arbitration “can prevent employees from learning about similar concerns shared by others in their workplace.”

Some regulators and civil rights experts also worry that arbitration clauses can obscure patterns of wrongdoing.

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In one example, American Apparel required many employees to agree to resolve disputes through arbitration, and to keep most of the details of the arbitration process completely private. Many employment contracts also included a confidentiality agreement that prohibited workers from publicly sharing personal details about Dov Charney, the company’s founder and former chief executive. Those who did, the contracts stipulated, could be required to pay damages of $1 million.

Several cases in which female employees sued American Apparel and Mr. Charney for sexual harassment were pushed out of court and into arbitration, where details were kept private. (An employee who accused Mr. Charney of choking him and rubbing dirt in his face did win the right to pursue his case in court in 2013.) Mr. Charney’s board eventually let him go as chief executive in 2014.

[...]

In arbitration, the rules tilt toward businesses, employment experts say. Instead of judges, cases are decided by arbitrators who sometimes consider the companies that routinely bring them business their clients, according to interviews with arbitrators.