Recently retired Congresswoman Cheri Bustos (IL-17) and journalist and television personality, Gretchen Carlson, join our hosts Jonathan Amarilio and Maggie Mendenhall Casey for discussion about the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act and the Speak Out Act which were both signed into law in late 2022 by President Joe Biden. As a result of these legal reforms, individuals can no longer be forced to arbitrate claims of sexual assault or harassment and can no longer be prevented from bringing sexual assault or harassment claims due to nondisclosure agreements. Our guests explain what these new laws mean for American workers and how they protect individuals who experience sexual assault and harassment.
Special thanks to our
Intro: You would think all you need to do to stop things like this would be to report it. I too thought that would end it, but the opposite was true. I was about to receive a horrifying lesson on the power of forced arbitration.
What I can tell you is that the cycle of sexual harassment will continue if you force women to be quiet and allow sexual harassers in the companies that allow them to hide behind arbitration agreements.
My case is now in force arbitration, and I have witnessed firsthand some of the numerous ways it is biased and unjust against survivors. Forced arbitration and the power it provides employers seems to have emboldened LVMH, who ramped up their retaliation, gaslighting me inferring that the sexual assault and harassment were figments of my imagination. LVMH has been so relentless in forced arbitration that I had to take unpaid medical leave this year due to their personal attacks.
You just heard statements from sexual harassment and assault victims who testified before the house judiciary committee about their efforts to seek justice and how those efforts were blocked when they were forced into close their arbitration and denied their day in court. Their testimony helped lead to the recent passage of legislation. That’s the topic of today’s episode. And now, on with the show.
Jonathan Amarilio: Hello, everyone, and welcome to CBA’s At the Bar, a podcast where we have unscripted conversations with our guests about legal news, topic stories, and whatever else strikes our fancy. I’m your host, Jon Amarilio of Taft Law and joining me as co-host is the incomparable Maggie Mendenhall Casey of the City of Chicago’s Department of Law. Hey, Maggie.
Maggie Mendenhall Casey: Hey, Jon. Loving that introduction, incomparable.
Jonathan Amarilio: You certainly deserve it. The topic for today, Maggie, is the legislative battle being waged against barriers to justice for victims of sexual assault and sexual harassment and our guests are two women at the forefront of that campaign, Congresswoman Cheri Bustos of Illinois 17th Congressional District. Representative Bustos is a democratic member of the house leadership and has spent much of her legislative career championing the end of forced arbitration, most recently seeing her bill, the end forced arbitration of sexual assault and sexual harassment act signed into law by President Biden.
And our second guest is Gretchen Carlson. Gretchen is a journalist, author, television personality, and co-founder of the non-profit, Lift Our Voices. A PEOPLE TV special contributor. She previously hosted programs including CBS’s The Early Show, Fox’s Fox & Friends, and The Real Story with Gretchen Carlson. Working as an advocate for women’s rights, Gretchen’s actions against former Fox news Chairman Roger Ailes proved to be an important moment in the MeToo Movement. She was named as one of Time magazine’s 100 most influential people in the world and is the author of New York times bestseller, ‘Be Fierce’ and ‘Getting Real.’ Congresswoman Bustos. Gretchen, welcome to At The Bar.
Gretchen Carlson: Thank you, Jon.
Cheri Bustos: Thank you.
Jonathan Amarilio: As I said just a moment ago in the intro. We’re discussing barriers to justice for victims of sexual assault and sexual harassment and related reform efforts. But before we tackle that problem, I thought it would be helpful to define it. I suspect our audience has a pretty good idea of what constitutes sexual assault, but the term sexual harassment maybe a little bit more vague in their minds. I pulled this definition from the EEOC’s website and I’d like to dig into it just briefly. Sexual harassment includes not only unwelcome sexual advances, requests for sexual favors, and verbal or physical harassment of a sexual nature, but also offensive remarks about a person’s sex. That kind of behavior is, of course, generally considered illegal when it creates a hostile or offensive work environment or results in adverse employment decisions. That was, I would say, half legalese. Gretchen, what does that mean in real life?
Gretchen Carlson: Well, thank you so much for having me. There are so many different ways that people can experience harassment in the workplace, and it’s one of the reasons that I think it has been around for so long and been tough to solve. First and foremost, sometimes it’s very blatant where it’s a quid pro quo. So, sleep with me and I’ll give you the promotion. And yes, that’s still happening in 2022 unbelievably, but oftentimes it’s much more nuanced and oftentimes what somebody might take as offensive to them might not be offensive to another person and that is what can sometimes make the definition a little bit more difficult to decipher. It really depends on the individual. Personally, I can’t tell you what happened to me at Fox News because unfortunately, I signed an NDA, but hypothetically, I think everyone understands that if somebody touches you and you didn’t request it, if somebody says, I’ll give you a promotion if you sleep with me, that’s obviously sexual harassment. If somebody tells a horrible joke about women’s body parts and then also I would just add in the retaliation. The retaliation is a huge part of the story that people don’t focus on very much, but when a woman tries to stop the behavior and doesn’t acquiesce to the demands, the retaliation can almost be worse than the behavior because most women are then pushed out of their careers as a result of that.
Jonathan Amarilio: Congresswoman Gretchen hinted at this a moment ago how pervasive this problem still is unbelievably in 2022. Do we know how many Americans approximately have been victims of sexual harassment?
Cheri Bustos: Well, I’m going to broaden out my answer to that, Jon. The reason you’re having me on this is because it was our office that authored the ending forced arbitration against sexual harassment and sexual assault that was signed into law by President Biden earlier this year. Let me tell you how many people were working under forced arbitration clauses, which very quickly what that means is if you have a forced arbitration clause and let’s say your employment contractor could be a terms and conditions box that you check off on a rideshare app or moving app or when you’re putting a parent into a nursing home or anything like that. Just means that if you are sexually assaulted or sexually harassed, and you’re working under one of those clauses, it is your employer who will pay for an arbitrator, and it is that arbitrator who will make the decision on what happens next and there are no appeal processes on that.
We know there are 60 million Americans that are subject to and that’s just in the workplace. Doesn’t count all the other places. It’s a huge problem and then Gretchen already talked about NDAs, which are nondisclosure agreements. The reason Gretchen cannot talk specifically about what she had to endure at Fox News is because she had a nondisclosure agreement. We actually have breaking news today, Jon and Maggie, and I know Gretchen knows about this, but President Biden just today, and we are talking on December 7 of 2022, signed into law that nondisclosure agreements, as they pertain to sexual assault and sexual harassment will be null and void as of today.
And when he signed our ending forced arbitration bill into law in March, those were null and void as of then. We are, with Gretchen’s help, and with other survivor’s helped, who told their stories, bravely told their stories where they could. It has led to this day, today where we’ve got this, what I describe as a one two punch of changing laws that will make a huge difference in the lives of people who have had to go through sexual assault or sexual harassment.
Gretchen Carlson: I would just add to that, Cheri, thank you so much. Two things. We don’t know how many people have been harassed in the workplace because quite honestly, nobody gave a damn about these issues, the way in which we now care about them over the last six to seven years, people who are experiencing it, cared about it, but trying to get congress and the media and corporations to pay attention to this has been a tough slog, but this time around, the movement was not going away. One of the things we’re trying to do at my non-profit, Lift Our Voices, is that kind of research. How many people have been affected by harassment? How many people have been affected by forced arbitration? How many people have been pushed out of their careers if companies don’t use these silencing mechanisms, do people do better? People of color and women, do they stay longer in their professions?
These are all questions that we feel that America needs to know, and they help move the needle for more change. The other stat I would just add into echo what Cheri said about forced arbitration. In 9091, 2% of all companies used forced arbitration clauses. By 2024, 84% of Americans will be bound by forced arbitration. The explosion in using these silencing mechanisms is at a complete detriment to the justice of employees to be able to own their own voices and their own truths.
Cheri Bustos: Gretchen, I’m going to take you not back to, but go a bit more into the forced arbitration clauses. I’m curious about why employees had favored those in the past, and why in particular, you and the congresswoman have worked so hard to get the ending forced arbitration bill passed.
Gretchen Carlson: I think that this was never the intent of arbitration. I think arbitration was a speedier, cheaper, arguably method to solve small business disputes and to unclog the court system. If my neighbor knocked over my fence, and we’re talking about 300 bucks, instead of going to court, okay, let’s go to arbitration. It was never the intent to adjudicate human rights violations with arbitration clauses in the workplace. That unfortunately, is how smart lawyers got together 30 years ago and said, wouldn’t this be great if we could cover up all this stuff?
And that’s really how I think it started to explode. One thing I would point to historically and anecdotally is that during that time was when we first heard about Anita Hill and I think a lot of companies said to themselves, “Holy crap, we cannot have an Anita Hill here.” And so we got to figure out how to silence this stuff. At the same time that they were publicly saying that they were going to start doing sexual harassment training. Forward facing, I think they were trying to do something that was important for employees. But I also think in the back rooms, they were trying to figure out how to silence people, and that’s really how it exploded and then you just add in that most people have no idea what a forced arbitration clause is, myself included. They put one in my last contract. I asked about it, but nobody said to me, if you’re considering filing a lawsuit or coming forward about something bad happening to you at work, you’re screwed. Nobody said that to me.
I think that’s a huge reason why this has been able to progress over the last couple of decades, because it’s something people don’t understand, and it’s a little wonky.
Cheri Bustos: Another point on that, Maggie. You think about when you’re starting a new job, and you go in and you meet with your human resources office and you’ve got all the paperwork in front of you, and you’re signing up for your health insurance and your dental insurance and all the stuff you have to sign up for as a new employee and to Gretchen point –
Maggie Mendenhall Casey: I certainly recall that being a government employee, all of the pieces of paperwork one has to sign.
Cheri Bustos: But even no matter where you work, I always worked in the private sector until this job in congress. No matter where you work, you’re sitting down and you’re signing all this paper, and you’re not really reading through there. I had no idea what a forced arbitration clause was either until I learned what it was and then said, “Hey, I’m in congress, I can do something about this.” Anyway. Just think about you’re signing all that away and maybe you’re right out of college or whatever. These 60 million employees have this in their employment contract. I do have a couple of stats to back up a little bit on your question. So 60 million employees.
Over a five-year period, there were only 11,000 employees who pursued arbitration against their employer, 11,000 in a five-year period. Think about that. And only 0.02 of those, that’s 0.02. I’m the worst person to talk about numbers, I’m a word person, but I actually pursued that, and then only 282 were awarded damages. That is why this has this silencing effect, these forced arbitration clauses and then the nondisclosure agreements on top of it. This is why this sexual harassment, sexual assault, and all of this has been going on and instead of just changing a culture, this is how it’s been dealt with.
Maggie Mendenhall Casey: Congresswoman Bustos since this is a legal podcast, I am going to bring in a slight legal question. Was the concern about forced arbitration simply that it was a silencing mechanism, or is the concern amongst the two of you, as well as other reformers in the area, that the venue itself was not fair, that the venue itself was skewed to favor the employers?
Jonathan Amarilio: And really quickly, just for audience, why did it prove to be a silencing mechanism? We’ve said it has, but why is that proved to be the case over time?
Cheri Bustos: Well, Gretchen, take that one because you’ve been silenced.
Gretchen Carlson: First of all, lawyers won’t take your case usually if you have a forced arbitration clause for the very fact that what the congresswoman just said. There’s such a small percentage of people who actually win when they go to arbitration. That’s the first thing. It’s really hard to get legal help if you have. That in and of itself is why there’s such a small percentage of cases that actually go to arbitration and then I would just say that the system is stacked against you from the beginning to answer the second part of your question, because the company is going to usually pick the arbitrator for you and those arbitrators come back for repeat business, the company is going to have a lot of arbitration cases and this is your only shot. You’re coming into an environment where the arbitrator probably is going to look at the side of the company a little bit more intently than your claims because they come back for repeat business and it’s a very lucrative position for them. Most of these arbitrators, I’m sure they’re lovely people, but most of them are retired judges and lawyers, as this audience would know.
Unfortunately, that group of people tend to be older white men. You are not going before a jury of your peers likely for harassment or assault case.
Cheri Bustos: Yeah, in an arbitration, it’s behind closed doors, there’s no public record, there’s no transparency, there’s no right to an appeal. All of those things and — oh, by the way, the employer is paying for the arbitrator, so it is entirely stacked against the person bringing this forth.
Jonathan Amarilio: What does the ending forced arbitration of sexual assault and sexual harassment act. I’m just going to call it the act for now because I don’t think I could say that three times fast. I’m amazed I did it one time fast. What does that do to help victims?
Cheri Bustos: It gives them the option to take their case to court even if they have a forced arbitration clause in their employment contract, or if it’s in your terms and condition because by the way, they are still going to be there because this only impacts sexual harassment and sexual assault pre-dispute. Thank you for doing this podcast, Jon and Maggie, because we need to get the word out. Gretchen has been remarkable. She’s a public figure who has written this awesome book, who has this national profile, who has worked her rear end off helping to spread the word on this but those all became on sexual harassment and sexual assault became null and void in March of this year of 2022. NDAs for sexual assault and sexual harassment go away as of today with President Biden signing that.
All this does now is give them an option but if a survivor of this chooses still to go through arbitration because they don’t want to go through court, they can still do that. They have this option now.
Gretchen Carlson: I wouldn’t recommend that. As a survivor, I would not recommend the arbitration mode. But yes, the main thing for us was making sure that people had a choice and I always say the operative word in forced arbitration is forced. If it’s so wonderful for employees, why are they forced into it? And that pretty much answers the question. Choice was huge but the congresswoman is also entirely accurate that if companies wanted to be good corporate citizens, they in new contracts, would parse out this new law and they would say, well, you have to sign a forced arbitration clause. If you’re discriminated against racially, gender, LGBTQ+, disability, age, we’re going to still force you into arbitration but if you’re assaulted or harassed, you have a choice. You think companies are going to write that in contracts? No way.
Maggie Mendenhall Casey: Probably not. Most likely.
Gretchen Carlson: They’re probably not. That’s why my work at my non-profit is far from done because our mission is to eradicate these silencing mechanisms for all disenfranchised groups. We should all be treated fairly, and the congresswoman knows this very very well. We had to try and take a bite out of the apple to get something done and the strategy proved to be effective because after the arbitration bill was passed into law, the congresswoman was very much involved in swiftly getting the NDA bill on the front burner and we were able to go back to a lot of the members of congress who had been supportive with us on the arbitration bill to get them to sign on to the speak out act swiftly and that is how we passed two of the biggest labor law changes for women in the last 100 years in a matter of just 9 months.
Maggie Mendenhall Casey: Let’s get a bit into the legislative history. This was proposed in 2017 and passed in March of this year. What were some of the barriers that you faced? Was it a normal time period for legislation to be passed, or was it lengthy because there was opposition?
Cheri Bustos: I’ll start out and Gretchen, who’s literally the best partner in this that you can imagine for actually not being a member of congress. Wrote this in 2017. Let me give you a little bit of the back story on that too. There was a story in The Washington Post about a company called Sterling Incorporated, which is the parent company of Kay and Jared Jewelers, and they documented just really some horrific sexual assault, really beyond even just sexual harassment. Women who could not take their significant other, their plus one, their spouse to these conferences, women who were expected to undress publicly in front of their male supervisors, a woman who woke up to being raped at one of these. There were 69,000 women who had gone through this, and yet they were silenced because of these forced arbitration clauses. They had to go through an arbitrator if they brought this to their supervisor.
The Washington Post did a remarkable job of explaining this and Gretchen, that was the first time I learned what forced arbitration was through reading this article.
I immediately talked with my chief of staff and legislative team and said, we got to do something about this. We wrote a bill which ended up being the bill that was signed into law, but it went through some iterations. Initially, we wrote it to amend the civil rights act, and we had to adapt over time because we weren’t going to get the support we needed to pass that. The end bill ended up amending the forced arbitration act from the 1920s. That was one of the changes we made. There’s a guy named Hank Johnson, who is a member of congress from the State of Georgia. He has a broader bill to the point that Gretchen brought up earlier that would get rid of forced arbitration clauses for racial discrimination, for age discrimination, for LGBTQ discrimination, for all of that. We think that’s the right approach and it’s called the Fair Act, by the way. We think that’s the right approach. However, we could not get enough support to get that passed.
Hank Johnson still has that bill. We hope at some point we’ll be able to get all of that taken care of. Those were some of the changes we made over five years, but we had to get this out of the House Judiciary, out of the Senate Judiciary. We had to get it passed through the full House floor, the Senate, and we ended up getting 113 Republicans to vote in every Democrat to vote for this on the House floor, and I still remember, Gretchen, we were texting back and forth at that point, and we were just counting the number of Republicans that we were getting, but that is really an amazing story in 2022 to be to be able to pass something with that broad of bipartisan support. The nondisclosure bill, which is Lois Frankel out of Florida is the author of that. Our office helped navigate that through because we use the same model as we use for the ending forced arbitration bill through.
We got 100 Republicans to vote for that. Really, I think that the moral of the story here, is that we were willing to adapt as needed. We had tremendous outside support. Gretchen, I’m a former reporter. Gretchen is a former reporter. There’s this phrase about shoe leather reporting, which is basically using your feet to walk around and really go out there and meet the people you need to meet and talk with the people you need to talk with. Gretchen was the ultimate shoe leather advocate on this, because Gretchen opened doors on the Republican side because of her — mostly, I think, Gretchen, because you worked at Fox News and you had that credibility where she could get into offices, that she had the relationships that really helped gain this wide bipartisan support.
Maggie Mendenhall Casey: I think I saw Lindsey Graham smiling at the signing ceremony. If that’s not bipartisan, I don’t know what it is.
Gretchen Carlson: I always say, Maggie, that it’s Strange Bedfellows, who came together on this bill and I do think that I had interviewed tons of members of congress over my career, but I do think there was some sort of a trust factor. I’m a registered independent, by the way, just for the record. But I do think there was a trust factor there and I’ll just add to what the Congresswoman said, that every time we needed 10 Republican senators to get this through the Senate, and every time we got another one, my kids and I would celebrate in our kitchen because they became a part of the process as well, which has been a wonderful learning tool for them about civic engagement and I would just also add that when we first introduced it in 2017, there was just a lot of other stuff going on the hill. I’ll just leave it at that. I think as the movement continued, meaning the MeToo Movement, and it wasn’t going away, I noticed a tonal shift amongst members of congress that I would approach, specifically Republicans, that I would say to them, okay, raise your hand if you’re still in favor of silencing women who are assaulted or harassed at work. Okay, I see you didn’t raise your hand. That was usually the opening way to get them to see this for the right side of justice, but I did see a big shift as this movement has continued, I think that they realized that it was time to come together.
Jonathan Amarilio: We need to take a quick break. But before we do that, I just want to drill down on a couple of quick lawyer questions. One, does the act apply retroactively, or only prospectively? Does it invalidate the forced arbitration clauses that were already in place before the act was passed? And two, what’s its reach? Does it only apply at the federal level, meaning the companies that are engaged in interstate commerce that are operating across state lines, or does this reach into states as well?
Gretchen Carlson:°It is retroactive in the sense that if you have a forced arbitration clause in your contract that you signed 10 years ago and you want to bring forward a harassment or assault claim, you do not have to abide by the forced arbitration clause. And that will apply for new contracts, too, because as we explained earlier, companies don’t have to necessarily parse this out for you for you to understand it which is why Cheri and I are doing so much of this publicity. We are trying to get lawyers to understand it and the general public to understand it. So that’s the answer to the retroactive nature of it. It will not take away a forced arbitration claim that you’ve already adjudicated. So, you can’t go back and revisit something. Or if you’re already in the process of forced arbitration before March 3 of 2022, you cannot go back and say, “okay, I don’t want to do arbitration anymore”, unfortunately.
I mean Congressman, correct me if I’m wrong on this but one of the main things we wanted to make sure with all the gig workers now and independent contractors, we only make sure that they were also covered under this law as well as migrant workers. We wanted to make sure that we were covering all the different ways in which people work, but might be subject to forced arbitration.
Cheri Bustos: °That’s correct.
Jonathan Amarilio:°All right. That’s a great place for us to take a break. We’ll be right back.
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Jonathan Amarilio:°All right. And we’re back. Congresswoman Gretchen, let’s move on to another big piece of legislation in this area that’s already been referenced indirectly a couple times in the conversation. That’s the Speak Out Act which was just signed into law minutes ago. As congresswoman said, we’re speaking on December 7, the morning of.
First, congratulations to both of you for all your advocacy and for that result. Second, what is the Speak Out Act? Why is it needed? What does it do?
Cheri Bustos:°Well, it’s modeled after our ending Forced Arbitration Act and we actually used really the same formula to get this through. But what it does, it makes non-disclosure agreements as they pertain to sexual harassment and sexual assault, makes them null and void as of today, December 7, 2022. So, this is, we really looked at this as this, you know, we said this is like the one-two punch. Having just the forced arbitration clauses being null and void wasn’t enough. We knew, Gretchen, I think we talked — didn’t we talk at the White House the day that President Biden signed our Forced Arbitration Bill into law that we now we got to move to the next step?
Gretchen Carlson:°We already started that process if you remember when the House was voting on forced arbitration because I was in that building with you but not on the floor and you came back and we overheard another member of Congress say, “well, if this was about NDAs, I’d vote for it.” And so, it started that night where you called Lois Frankel, when you came back up into the room because you knew she had an NDA Bill that was more broad and she agreed to pare it down for just harassment and assault if we could get Republicans on board. And so, the Genesis of the Speak Out Act was actually on the heels of the vote in the House for forced arbitration.
But Cheri, I’ll just also add just for a little bit more of a caveat on the Speak Out Act, it’s only pre-dispute NDAs.
Gretchen Carlson:°So, these are the NDAs that people signed on their very first day of work. One third of all Americans signed these kinds of NDAs. Most of the time, they have no knowledge that they are signing for more than just trade secrets. They think when they sign their paperwork, that, “oh, of course, I won’t if I work for Coca-Cola. I won’t walk across the street to Pepsi and give away the secret formula.” And we agree. Companies should be able to keep that stuff secret. However, these clauses have become incredibly expansive, and they’re not defined very well. So, it doesn’t say like, “hey, if something really bad happens to you at work, you’ll never be able to talk about it.” No. It’s a bunch of legal jargon that does not spell out to the person reading it, that they’re walking around with a muzzle on them on their first day of work. One third of all Americans do that.
Jonathan Amarilio:°And so, it doesn’t apply to NDAs that are entered into as part of settlement agreements like your NDA, Gretchen, right?
Jonathan Amarilio:°This can’t be the first time you talked about your experience publicly because of that limitation?
Gretchen Carlson:°No. And this was all we could get done, which is a great first step because I believe it’s the first time the federal government has laid out an opinion on NDAs and basically saying that they are not a good tool, that they silence people. So, it protects people from their first day of work. Again, retroactive. If you have an NDA, like, I just explained in your contract, and you want to talk now about your experience of harassment or assault and you have not yet filed any kind of illegal claim, you own your own voice. Now, you own your own voice from the first day of employment through when the bad thing happens, through when a formal dispute arises. And that’s how the law reads and that’s where it will probably be up to the interpretation of judges and there’ll be different opinions in different states about what that means when a dispute arises. But that’s what we could get done and that is what the law does as of today, and it gives millions of people their voice for a significant period of time.
Maggie Mendenhall Casey:°Gretchen, I just want to ask —
Jonathan Amarilio:°Wait, let’s —
Maggie Mendenhall Casey:°You can go, John. I’m sorry.
John Murillo:°Maggie, real quick. I’m sorry. I just want to drill down on that. The Appellate lawyer means absolutely fascinated by what you just said, Gretchen. When a dispute arises, that term is not defined in the legislation? So, the settlement process before a claim is filed, in court let’s say, that’s complete gray area under this current legislation? Let’s say you quit your job and your lawyer calls up the former employer and says this happened, we’re going to file a claim. But they haven’t filed a claim yet right and the company says, “you know what, let’s settle this. Let’s settle this.”
Gretchen Carlson:°Right. That’s a gray area.
Jonathan Amarilio:°So, that’s a huge — okay. Wow. That’s going to be a lot of work for lawyers. Maggie, I apologize. Go ahead.
Maggie Mendenhall Casey:°No problem at all. So, unlike John, I’m a trial attorney. He’s an Appellate attorney. So, I have more questions about the practical implications or the interplay between NDAs and arbitration. Now, I heard both, Congresswoman as well as Gretchen. You were alluding to the two of them work together to really silence people and I would just like more information about practically before these two laws passed, how do they work together to silence people?
Cheri Bustos:°Well, you know, play this out. So, you’ve got these as part of your employment contract. Let’s just stick to the employment contracts right now, not counting the terms and condition boxes and all that stuff. So, you first of all — so we get rid of the forced arbitration clauses as of March of this year. So, you now have a choice to go to court should you choose to do that again, it is the person’s choice, but you still have the NDA where you cannot — the non-disclosure agreement where you can’t talk about it. That’s why we knew back to the timeline of making sure that we address the non-disclosure agreements — I mean you really need to have both to make this as effective as it possibly can be. That’s what I mean by the one-two punch. Now, you can you can go to court but if you have the non-disclosure agreements, it’s still this duct tape over a person’s mouth.
So, that’s the way I look at it, Gretchen but you’ve had to live through this. So, your explanation is a lot more important than mine.
Gretchen Carlson:°Well, so we believe at Lift Our Voices that eliminating these two silence and mechanisms is the key to all equity because when you can own your own truths and your own experiences and you can talk about them, we have seen over the last six years that that’s how you solve problems. And that’s how you start to find justice for people. So, that’s why we’re working so hard to eliminate them.
The one thing I would just add to what the congressman said is that forced arbitration is usually only brought to your attention when you start a new job. It’s in your original paperwork of your contract. NDAs can appear in your work experience over a variety of different situations. So, you may sign one on your first day of work, one third of all Americans do, but let’s say you go to complain about something and HR says, “well, we’ll give you some extra vacation time. Why don’t you go think about this for a while? Go on vacation. And here’s an NDA to sign before you leave.” So, it can appear like that. NDAs can appear upon settlement or resolution. NDAs can appear upon severance or even just to get a letter of recommendation. I mean they are everywhere. They are used liberally inside the workplace. So, millions of people are signing these when they leave a job even if nothing bad happened to them. But they can never talk about their work experience if they want to get their stock options. I mean, it’s crazy.
So, that’s how pervasive these tools have become and I would just say that what has propelled me to become an advocate on this work was that after my story in 2016, I started hearing from thousands of women across our country, and the majority of them had been silenced and forced into arbitration.
Then, they signed NDAs and the thing that got me was that they never ever worked again in their chosen profession. Because when you play this out and you try to go get another new job and your new prospective employer says, “well, why did you leave your VP position at the bank you worked at over the last 15 years?” And your only response is, “I can’t tell you.” You’re not going to get hired, because you look like the bad guy, like you did something shady.
And the other thing I want to make sure I mention is that we are working to change the culture inside companies as well. Passing legislation is a key to that but also getting companies to realize that these policies are bad behavior for their employees. And at Lift Our Voices, next year, we’re going to be putting out a rating system of companies so that we can tell all Americans which companies choose to silence you and which companies do not. And we believe that employees have the right to know before they start a new job if they’re going to be silenced or not.
Cheri Bustos:°Gretchen, I love that.
Cheri Bustos:°That’s breaking news. Good for you. That’s going to be a lot of work and very important.
Gretchen Carlson:°It is. Yep. We just got some funding for it at Lift Our Voices. So, yeah.
Cheri Bustos:°That’s great.
Gretchen Carlson:°It’s going to be really, really great. So, number one question I get, Cheri, when I speak to audiences is how do I know if my company uses these or not? And we believe that providing this tool is incredibly important.
Cheri Bustos:°Good for you. You know, Gretchen and I were standing right by each other at our very first news conference when Lindsey Graham, you know, I didn’t know Lindsey very well. They haven’t worked with him on any legislation up until this piece of legislation but he gets up at the podium and he does this shout out to American businesses saying, it is bad business to have these forced arbitration clauses. And so, to Gretchen’s point, and the fact that you’re doing all of that hard work to get this rating out there, it’s terrific because it is bad business and you know what, those bad businesses that are continuing to do stuff like this, we ought to make sure that the public knows about it. So, I think that is actually terrific. I’m very excited to learn them.
Maggie Mendenhall Casey:°So, I have a question as a pop culture fan. I had a chance to watch the loudest voice which is The Roger Ailes miniseries, Gretchen, where you were played by Naomi Watts, and I enjoyed it. And I was wondering if you had a chance to watch any of the pop culture depictions of your time at Fox News.
Gretchen Carlson:°Yes. And my kids, unfortunately, watched that, because that got into much more detail than the movie Bombshell. But here’s the reality of signing an NDA. I can’t tell you what I thought about that. I can’t tell you if I thought Naomi Watts or Nicole Kidman portrayed me more accurately. I can’t tell you if the depiction of me is accurate. This is how horrendous NDAs are. My husband can’t tell you if anything was true. My parents can’t tell you if anything was true. I mean, NDAs are so broad and wide and, you know, forget the fact that I can’t talk about any of the details. What about the mental health of silencing all these millions of people that we’ve been doing over the last couple of decades? We’re not even getting in started to examine any of that.
But I always say about these projects that even though I couldn’t participate and even though I can’t comment on them, I think that they were incredibly beneficial to the movement. Because first of all, actresses of that caliber decided to take on these roles. That was the first thing. Number two, movie makers actually thought it was important enough to do movies on this. They would have never done these movies six, seven years ago. So, that was advantageous. And then, I would just also add that if even just one person watching the miniseries or the movie felt the courage to come forward and tell their story as a result of that, then it’s worth it. So, I may not own my own voice but I, you know, it’s I did get a (00:39:22) in my settlement to be able to talk about these issues and I have taken full advantage of that.
Maggie Mendenhall Casey:°And we really do appreciate that that you have. So, as a general proposition, who’s a better actress? Naomi Watts or Nicole Kidman?
Gretchen Carlson:°Oh, gosh. Well, I’m not — look, they’re both spectacular. I will say just as a fun side note that I have become friendly with Naomi Watts when we met at the premiere of the Loudest Voice. I felt like she just knew me 100% because she had been studying me so long and she wrote a lovely Instagram post to me about my bravery. And so, we’ve had a friendship. I have not had the chance to meet Nicole Kidman. But I always joke that if I ever do, I’ll have to put on stilts because she’s about six feet tall.
Cheri Bustos:°So, but Maggie, while Gretchen cant’ talk about her story but she sees the value of these stories being out there, that was really a turning point for our legislation though was the women who testified before the House Judiciary Committee, who, by the way, had to be subpoenaed because they were living under these forced arbitration clauses. But the members of Congress who serve on the House Judiciary Committee described the women’s testimony as one of the most powerful pieces of testimony they had ever heard as members of Congress. I mean, they were powerful. These women, like Gretchen, women who came forward, we’re incredibly brave to share some horrible stories. But they did it and I hope that you’ll share with the listeners how they can watch this testimony because I think that is partially why Gretchen, we had such wide bipartisan support in the end, because you can’t hear these stories of just terrible things that have happened to people. You can’t hear these stories and not want to do something about it.
Gretchen Carlson:°Now, I’ve worked as an actress since I was a child and find countless contracts negotiated on my behalf, but never understood that there were mandatory arbitration clauses that would be used to keep what had happened to me a secret and would protect CBS and the sexual harassment perpetrator who had blatantly retaliated against me for trying to stop the harassment in my workplace. I was shocked to learn that I had signed away my rights to a public forum before taking a job. Who would ever think up such a clause? Who are these clauses meant to favor and protect? It suddenly became clear. Not me.
For the next year, I found myself pitted against one of the most powerful media corporations in the world, CBS, with its unlimited resources which was controlled by the men who used the arbitration clause to protect themselves, their profitable show and to silence me.
Female: °Their harassment and assault I endured we’re hard enough on my family, but we still managed the financial and emotional burdens of being sued by my abuser in secret arbitration. (00:42:22) still has power over me. He’s still able to frighten me. Forced arbitration is the reason (00:42:30) is able to carry out this ongoing campaign of retaliation against me, my family and probably other victims. Today, as I speak here, I am afraid of the consequences for my family that will arise from my speaking out. I have PTSD, I have nightmares, I used to be very social person and I no longer am. The person who changed my life forever continues to abuse me because forced arbitration gives him the power to do it in secret.
Jonathan Amarilio:°You just heard a few more clips from sexual harassment assault victims who shared their stories with Congress in November 2021. To hear their testimony in full, you can visit judiciary.house.gov. We’ll be right back after the break with a round of Stranger Than Legal Fiction.
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And we’re back with Stranger Than Legal Fiction. Our audience knows the rules. Maggie and I have done some research. We found one law each that is real on the books somewhere, but probably shouldn’t be. And we’ve made another one up. We’re going to quiz each other and our guests to see who can distinguish strange legal fact from fiction. Everyone ready to play?
Maggie Mendenhall Casey:°Yes.
Jonathan Amarilio:°All right. Maggie, why don’t you lead us off?
Maggie Mendenhall Casey:°Sure. So, starting in January 2023, Illinois will no longer have a cash bail system, or starting in January 2023, California will no longer have a cash bail system. Which law is correct and which law is false?
Gretchen Carlson:°Illinois’s correct.
Jonathan Amarilio:°I mean that’s quite the audience to ask. She’s a lawmaker from Illinois, Maggie.
Maggie Mendenhall Casey:°I mean, —
Gretchen Carlson:°I have no idea. So, I hope you’re right, Congresswoman.
Maggie Mendenhall Casey:°John, did you want to weigh in?
Jonathan Amarilio:°I’m going to defer to the lawmaker in the room. But, yeah. I believe the Safety Act was passed in Illinois recently.
Maggie Mendenhall Casey:°Yes. So, opportunity to highlight Illinois Safety Act and highlight that Illinois is the first state in the United States that has ended, or will be ending starting next year, the cash bail system basically with the understanding that either you’re a danger and you should be held in custody or you’re going to exercise your rights to fight the case and understanding that you’re innocent until proven guilty and you can be released with restrictions. So, it was a pretty straightforward one but I wanted to use it as an opportunity to highlight the Illinois Safety Act.
Cheri Bustos:°Yeah. It does help that I’ve lived in Illinois my whole life and I’m married to the Sheriff of Rock Island County. So, yeah.
Jonathan Amarilio:°Law enforcement.
Cheri Bustos:°So, that was kind of — yeah. So, I knew that one pretty easily. Thank you.
Jonathan Amarilio:°Law enforcement definitely had some opinions on that act at least before it was amended.
Cheri Bustos:°Yes, they did.
Jonathan Amarilio:°Let’s go west with round two. Here’s option number one. In Oklahoma, it is a misdemeanor to be a nosy neighbor by eavesdropping on other’s conversations and then spreading gossip about them with any information you learned while eavesdropping. Option number one, gossips are illegal in Oklahoma. Option number two. In Nebraska, it’s a misdemeanor to bring glitter or sequins into the state capitol building or any courthouse unless said glitter and sequins are already attached to clothing. So, any art projects involving glitter are banned from the state capitol building and courthouse. Who wants to go first?
Maggie Mendenhall Casey:°I’ll hop in. I think the second one is true and the first one is false.
Jonathan Amarilio:°Congresswoman, your eyebrows were up.
Cheri Bustos:°Well, they’re both ridiculous. But I’m going to say I agree with Maggie.
Gretchen Carlson:°I do, too, even though — well, you know what? No. I’m going to go with the Oklahoma one just to be different.
Jonathan Amarilio:°Gretchen, your contrarian instincts have paid off. In Oklahoma, it is illegal to eavesdrop on a neighbor and then use that information to talk about the information that you learned. That law was passed in 1910. It is still on the books, believe it or not. I suspect it would suffer from a legal challenge if that ever came up. But it’s real.
Maggie Mendenhall Casey:°John is on you, as an Appellate lawyer. Get working on that case.
Gretchen Carlson:°Okay, John. How did you come up with the —
Jonathan Amarilio:°I’ll fly down the eleventh circuit.
Gretchen Carlson:°I want to know what made you think of the glitter act because that’s just weird.
Jonathan Amarilio:°I have a 20-month old daughter who’s recently discovered glitter, and that has proved to be an interesting decorative choice in our house lately. So, glitter is just very much at the forefront of my mind.
Gretchen Carlson:°Okay. Gotcha.
Cheri Bustos:°That makes sense.
Maggie Mendenhall Casey:°It’s pervasive. Once you get it out, it’s hard to get rid of but —
Jonathan Amarilio:°It’s impossible. The stuff should be just better be illegal, Congresswoman.
Cheri Bustos:°It is pain.
Jonathan Amarilio:°I think a lot of people would be behind you if you put some legislation down on banning glitter nationally.
Cheri Bustos:°It’s a great idea. I bet it’s one of those things that can lead to somebody winning an election. It’s just so critical.
Gretchen Carlson:°Yes. 100% by far is in support.
Jonathan Amarilio:°I feel like I’ve contributed to the national debate now. That’s wonderful. That is going to be our show for today. Congresswoman Bustos, Gretchen, thank you so much for joining us and for pursuing this incredibly important work. We truly wish you the best of luck in your future work in this area. I also want to thank my co-host, Maggie Mendenhall Casey; our executive producer, Jen Burn; Adam Lockwood on sound; and everyone at the LegalTalk Network family. Remember, you can follow us on those comments, questions, episode, ideas or just troll us on Facebook, Instagram and Twitter at cba@thebar, all one word. You can also email us at [email protected]. Please also rate and leave us your feedback on Apple Podcast, Google Play, Spotify, Audible and review to download the podcast to help us get the word out. Until next time for everyone here at the CBA, thank you for joining us and we’ll see you soon @theBar.