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Will Gretchen Carlson's Case Against Roger Ailes Go Through the Courts Because of Sloppy Drafting?

by John Lande
July 2016

Indisputably

John Lande

You may have heard about the lawsuit that Gretchen Carlson filed against Roger Ailes.  According to the New York Times:

“Roger Ailes, the chairman of Fox News, was accused on Wednesday of forcing out a prominent female anchor after she refused his sexual advances and complained to him about persistent harassment in the newsroom, a startling accusation against perhaps the most powerful man in television news.

“In a lawsuit, the anchor, Gretchen Carlson, a longtime Fox employee who left the network last month, portrays Mr. Ailes as a loutish and serial sexual harasser, accusing him of ogling her in his office, calling her ‘sexy,’ and describes a boys’ club environment at the network.

“Her charges — including the accusation that Mr. Ailes explicitly asked Ms. Carlson for a sexual relationship during a meeting in his office — amounted to an almost unprecedented public attack on Mr. Ailes, a towering figure in media and Republican politics who typically enjoys absolute loyalty from his employees.

“Late Wednesday, the parent company of Fox News, 21st Century Fox, issued a measured statement, saying it had ‘full confidence’ in Mr. Ailes, but had initiated an internal review of Ms. Carlson’s charges. ‘We take these matters seriously,’ the company said.”

Carlson’s employment agreement included an arbitration clause and Ailes has moved to have the case heard in arbitration.  Carlson’s complaint names Ailes and not Fox, so she argues that the case may be heard in arbitration since the agreement doesn’t cover a complaint against Ailes personally.

Washington Post blogger Eric Wemple quotes Paul Bland, executive director of Public Justice, as saying that the arbitration clause was poorly drafted as Ailes appears to be a non-party. Any of our arbitration gurus have an opinion about this?

This case seems somewhat similar to the controversy about Anita Hill’s allegations of sexual harassment against Clarence Thomas. Ailes notes that Carlson had stayed with the network and praised him.  Several female Fox personalities have issued statementssupporting Ailes and denying sexual harassment.  And other women have now claimed that Ailes had harassed them.

If Carlson does bring a case against Fox, the following collection ofvideo clips of her co-hosts on Fox and Friends seems like a textbook illustration of a hostile work environment.

Given the high profile of the parties and sensational allegations, we will probably hear a lot more about this case.  Hopefully, it will provide a valuable reminder about the serious problem of sexual harassment, which unfortunately still continues.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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