Silenced no more: Gretchen Carlson spearheads the first major legislative response to #Metoo

Amanda Hammett: Jeff and I were honored to host Gretchen Carlson on Win(e)d Down Wednesday. just prior to the Senate's passage of the Ending Forced Arbitration of Sexual Harassment Act. It's the first major bill of the MeToo era. And it ushers in some of the most significant workplace reforms in decades. Now as you know, President Biden recently signed this bill into law. So here's the episode for insights on the legislation direct from Gretchen Carlson.

Amanda Hammett: Thank you for joining us. This is Win(e)d Down Wednesday and during women's history month, we are focusing on how to break the bias in the workplace to forge and promote a diverse, equitable, and inclusive workplace. I'm Amanda Hammett, and today I'm drinking my millennials favorite kombucha raspberry. Hibiscus is my favorite favorite choice for this. Jeffrey, what are you drinking today?

Jeffery Tobias Halter: Yeah, I have a delicious 2017 cab from Napa Valley. Um, this actually has some significus. Gretchen and I actually attended an event in Napa Valley called "Women of the Vine" a number of years ago, pre COVID great bunch of men and women looking to advance women in the wine industry and the spirits industry. So we're going to have them on at some point in time. But, right now it's really my honor to introduce today's guest, my friend and colleague Gretchen Carlson. Gretchen is a journalist, author and advocate for women's rights and workplace equality. Her 2016 landmark harassment case against Fox news CEO. Roger Ailes helped ignite the MeToo movement. She was named one of Time Magazine's 100 most influential people in the world. Get the news with Gretchen Carlson and as a contributor to people TV. She is the author of The New York Times bestseller "Be Fierce" This is my copy it is dog ear Gretchen. I use this in my training it is just amazing And also getting real. She recently co-founded the nonprofit "Lift Our Voices" to end the silencing of harassment victims through forced arbitration and non-disclosure agreement for toxic workplace issues. She's a graduate of Stanford University and the mother of two teenage children.

Amanda Hammett: Well, Gretchen, welcome to Win(e)d Down Wednesday. What's your beverage of choice today?

Gretchen Carlson: Well, thanks for that lovely introduction. Um, I have gone off of, uh, diet sodas the last five years. So now I am seltzer drinker. And so, and, and the reason it's green is because I love lime. So lime Seltzer Um, I'll cheer you on the wine. Uh, you're starting early, uh, Jeffery, I know it's the afternoon. As people said it's five, five somewhere, but I can't join your quite yet, but I will at some point.

Jeffery Tobias Halter: That's totally great. So, so we want to jump right in and um, I want to set some context for our listeners. You know, when you join a company on your first day. You sign all kinds of paperwork. And within that is typically an NDA, a nondisclosure agreement. And NDAs are simply agreements to not share your company secrets. but embedded in NDAs. It's a dirty window corporate secret called forced arbitration. Gretchen talk to our listeners about what employees don't know and understand about Forced arbitration clauses, the implications on harassment and assault cases for both men and women and the legislation that you have sponsored.

Gretchen Carlson: Well, thank you. It's a loaded question. Um, first of all, uh, before the pandemic, when I would speak before thousands of people in my first question to them would be raise your hand if you know, whether or not you have a forced arbitration clause or an NDA in your employment contract, and nobody would raise their hands. Uh, specifically with arbitration people have no idea, right? You're just excited to start your job. And, and you're just happy you got employed, and you're not thinking that anything bad might happen to you. So even if you did understand these clauses, you wouldn't be concerned about them. the problem is that they have become their own epidemic. forced arbitration clauses in employment contracts by 2024. 84% of all people working in corporate America will be bound by them. That's almost everyone and NDAs. A third of all Americans currently are bound by them in their employment agreements. Now I want to be clear. I'm not talking about getting rid of NDAs that do protect trade secrets. Every company should have the ability of course, to be able to keep the recipes for the big Mac secret. Right. But what's happened over time is that these non-disclosure agreements have becomes so vast and expansive that they basically cover every single thing that happens to you on the job from not being able to talk about what you're paid. To not being able to talk about if you're sexually harassed or if you're discriminated against. And that has become the huge issue because we're silencing our workers at a rapid rate, you know, just for personal history. When I was at Fox news, they snuck in arbitration clause in my last contract. And, you know, I was very savvy and smart to look at every detail. And I asked my agent at the time, What is this? And she's like, oh, don't worry about it. It's becoming the way of the world. And unfortunately she was right, but I didn't understand the ramifications of what that clause would mean to my lawsuit that I was already thinking about. So how is it simplest to explain. It's that you basically, if you do have a complaint at work, you cannot go to an open court system in front of a jury. This forced arbitration clause makes you go to this secret chamber called arbitration where. The deck is stacked against you almost from the beginning because, uh, the company does a lot of these cases, your, this is your only shot at it. So arbitrators come back for repeat business. The company many times chooses the arbitrator for you. They tell you that it's a simpler process. No one will know about it secret. And, um, and the, and it's cheaper. Um, the problem is you don't get the same amount of witnesses, depositions. It is secret. And so you can't tell anyone. What happened to you, and the biggest, biggest problem that's been happening over the last few decades in our workplace is that predators are allowed to survive and continue to thrive because nobody knows that this is going on. They get to keep their jobs, but the person who has the courage to come forward gets thrown into the secret chamber, never to be heard from ever again. So this is what I'm trying to change at my nonprofit, uh, lift our voices and, uh, also with my legislation, which is now really picking up steam and moving forward.

Amanda Hammett: Wonderful. So let's actually dive into the impact of that legislation for the survivors, specifically of workplace sexual assault and harassment. How does binding arbitration and NDAs silence survivors of workplace sexual assault and harassment?

Gretchen Carlson: Yeah. So I just explained how, how secretive it is. Um, it also, it precludes you from really ever being able to work again. I would say the thousands of people who reached out to me the most, the most awful thing about all of this is that they, they lose the American dream. Because they never ever work again in their chosen profession, because imagine if you were like a VP at a company for 15 years, you have the courage to come forward about something bad that happened with you and you forced him to secret arbitration. Can't tell anyone what happened to you. Now you try and go get another job, a high level job. Right. And they say, well, why did you leave the last place? Well, I can't tell you. Right. You can't, it just precludes you from being able to move on in your career. And that's, what's really propelling me for this change. So my legislation is very simple. It's only two pages long. It's the same in the house and the Senate. It was reintroduced this past summer again, it's bipartisan, which is amazing because nothing's getting done in, in that way. And it basically does not allow companies to force you into this secret chamber of arbitration for assault or harassment. It's very narrow. I did it on purpose because after working in politics in TV for the last 30 years, I understand that it has to be a bipartisan to get done. And in order to get both sides together on this, it has to be very narrow in scope. Um, so. This is what I'm tackling first. Then I may move on to other issues that are affected with arbitration, but, but when this passes, this will be the biggest labor law change in the last 100 years. And it will affect millions of workers. I'm happy to say that in November. Um, I was there in person when it passed unanimously out of the Senate judiciary committee And also two weeks later out of the house judiciary committee and that's where bills go to live or die. If they come out of committee, then they have a chance of getting to the floor. And so right now, um, my bill has, you know, a huge chance of, of getting to the floor because it's come out of committee and, um, I'm really optimistic about it. And I've learned a heck of a lot. I mean, I might even have to write a book on how to pass a bill, um, because I become sort of a, an expert on it without really ever intending to, but really optimistic about the efforts and, and more optimistic about how many people it will help.

Jeffery Tobias Halter: Gretchen. That's great. So what, uh, what are the last hurdles what's, what's hampering this legislation for moving forward?

Gretchen Carlson: There's a big entity that, that, you know, I loved growing up and I used to speak in front of them, um, called the chamber of commerce. Um, they do not like this bill. And so they are, um, they're pretty much against it. Although this time around, they won't publicly come out against it, which I think is fascinating because I've noticed this as well for other people who didn't like the bill when I first introduced it in 2017, I think it's emblematic of, um, how successful this movement has been and the fact that it's not going away. And I think people are starting to realize, you know, oh, whoa, she might actually get this done. Um, so maybe we should get on board right. And get on the right side of history before we're forced to do it. Uh, so, so the chamber has, um, shifted a little bit, um, but they, they don't think that this is going to be good for big business. Um, and, and I completely disagree with that. Um, I don't think again, I asked for a show of hands to members of Congress when I asked this question, um, raise your hand If you're in favor of silencing women and men who are harassed or assaulted at work. I thought so I didn't see any hand. So that's the question I asked the members of Congress. That's the question that I would like to ask to the chamber of commerce. Um, but I would also say Jeffery that, this tends to be more of a, of a democratic issue, but Republicans are, becoming much more comfortable with my legislation because it is so narrow in focus. And I'm happy to say that I have, um, I have many Republicans who have joined forces with me now. And, um, as I said earlier, it has to be bipartisan to get done and the issue is apolitical. So, um, so that's, that's kind of where it stands right now, but, but really optimistic.

Amanda Hammett: Wow, this has been wonderful. This I've learned so much in just a small, tiny amount of time. It's amazing. The things that you don't realize are going on behind the scenes or that you're signing blindly. So this is, uh, this is the time for everybody to really start becoming aware and follow along with Gretchen and, and support this legislation. Gretchen, thank you so much for being with us. And of course, thank you to our audience and to our listeners. Uh, you can find Gretchen's books. "Be Fierce", and "Getting Real" at your favorite bookseller. And you can also find out more information about Gretchen and her legislation at gretchencarlson.com.