Gretchen Carlson, along with her Lift Our Voices co-founder, Julie Roginsky, may have cracked the code for an increasingly rare phenomenon on Capitol Hill: bipartisan support.
In 2022, Carlson and Roginsky were instrumental in the passage of the Ending Forced Arbitration for Sexual Assault and Sexual Harassment Act and the Speak Out Act, which freed survivors of workplace sexual assault and sexual harassment to sue their employers in court and speak about their experiences.
When it came to mandatory arbitration and nondisclosure agreements, Carlson and Roginsky were clear early on that they didn’t intend to stop at sexual harassment and sexual assault. Now, Lift Our Voices is pushing for support of the Protecting Older Americans Act, which would end mandatory arbitration in cases involving age discrimination. Carlson will testify in support of the bill before the Senate Judiciary Committee Tuesday.
Carlson spoke to HR Dive about the aftermath of her first successes, how the sausage is made on Capitol Hill and how Lift Our Voices is approaching the work ahead.
This interview has been edited for clarity and brevity.
HR DIVE: What have you heard from survivors and others in the wake of your initial legislative victories?
GRETCHEN CARLSON: It takes a while to see how the laws are benefiting people or how judges are interpreting the law, but we have many cases of people who have greatly benefited from the arbitration law. For example, there’s a woman, a bartender at a high-profile country club in New York — she filed a harassment charge against the company because some of the members were harassing her, including the security guard, and because of the law, she was able to seek justice in the court system, even though the company did go to the judge to try and get her back into forced arbitration. The judges are obviously now understanding the law and saying, “No, you can’t do that.”
Another example: A judge in Texas declined to grant Blaze Media’s motion to dismiss against an employee who filed a sexual harassment charge against her co-worker, and she also does not have to go to forced arbitration.
Personally, it’s really gratifying to see that all of the hard work that led up to actually getting that law passed is doing exactly what we hoped it would do.
Having had success with eliminating forced arbitration for sexual harassment and sexual assault, can you tell me a little about your decision to focus on older workers next?
The inside story is that when we were at the White House with the president to sign the forced arbitration law in March of 2022, bipartisan co-sponsors Sen. Lindsey Graham, R-S.C., and Sen. Kirsten Gillibrand, D-N.Y., were sitting next to each other. Sen. Gillibrand said to Sen. Graham, “Hey, what are we going to do next?” And he said that he would consider age discrimination. Right when the signing was done, she came right to me and she goes, “Well, we already know what we’re doing next” — what I was doing next with her — and I said, “Fantastic.”
That’s actually how the Speak Out Act was born. On the night that the House was voting on the forced arbitration law, my House Republican co-sponsor overheard another Republican saying, “Well, if this was about NDAs, I’d be in favor of it.” So we got on the phone with Lois Frankel, a Democrat from Florida who had introduced a much more expansive NDA law, and we said, “Will you pare it down just for sexual misconduct? Because we just heard a powerful Republican” — it was Jim Jordan — “say that he would be in favor of it.” And so that gave birth immediately to the Speak Out Act.
I’m making it sound easy, but really, the initial hard work was getting that bipartisan coalition, getting them to understand forced arbitration and how dangerous it was, and trying to get them to move in a little bit more of the same direction.
Do you think there will eventually be a shift in Congress to simply disallowing forced arbitration in employment cases or do you think it will need to go piece by piece and protected category by protected category?
That’s completely contingent on the makeup of Congress. This tends to be more of a Democratic issue. In fact, there is something called the FAIR Act, which has been around for many years and which passes the House almost every Congress when it’s Democratically controlled. That is a much more all-encompassing, expansive bill that gets rid of forced arbitration not just for employment, but also for consumers.
That is never going to pass the Senate in its current form. From all my years being a reporter and understanding Washington, we knew that you’re never going to pass anything in this Congress unless it’s bipartisan. So how do we find success with the way in which Congress is currently made up? That is how we came up with the strategy to try and take a bite out of the apple one piece at a time.
While the Protecting Older Americans Act was introduced in both the House and Senate last June, things seemed to stall. But I saw three senators signed on as co-sponsors last month. Can you talk a little about what’s going on behind the scenes?
A huge senator that we got on board was Sen. Grassley of Iowa. He has been a big proponent of age discrimination issues in general. I went right to him in person, right before we introduced the legislation to see if we could get him on board. So not only does he have an interest and passion in this area, but he also has a lot of gravitas, especially on the Senate Judiciary Committee where this hearing will be taking place. Sen. Grassley just holds a lot of respect from other members of the committee and in the Republican Party in general, so that was a huge victory for us to get him on board.
In my experience in the House in particular, when I was trying to get members on as co-sponsors for the Speak Out Act, many Republicans that I spoke to said, “We support you and we will vote for this bill, but we will we can’t put our name down just right now.” Because they’re worried about the repercussions. That’s how politics works. Behind the scenes, we’re talking to people all the time. Just because their names aren’t listed on the website doesn’t mean we don’t have more support.
I’m trying to take every meeting that I can possibly get. I’ve learned not to wear heels to Capitol Hill.
What are the concerns you’re hearing from those in Congress about the bill?
One argument we heard when we were trying to get the first arbitration law passed was, “Oh my gosh, there’s going to be a flood of cases in the courts.” And over the last two years, that hasn’t happened. And we knew it wouldn’t happen, because quite honestly, a lot of people don’t necessarily want to file a lawsuit, right? But they have the ability to try and come to terms with their employer without being forced into secrecy. So it’s their choice now, but we’re not seeing that flood of lawsuits.
I think some people on the other side thought there would also be claims that would arise that maybe weren’t true. But my response to that was always, “Coming forward ain’t fun.” I’ve done it. It ain’t fun. So the idea that people are just going to make up claims because they can put it out in the open — that also has not happened.
Then we have people like the Chamber of Commerce and other organizations that tend to be more in support of big business who, for whatever reason, have been opposed to these laws. But actually, interestingly enough, at Lift Our Voices we’re working on a project right now to try to prove that companies that don’t use these mechanisms perform better financially and retain women and people of color at a higher rate. Once we can prove that, then there’s really no argument.
Last year you and Roginsky spoke to HR Dive and touched on how cultural change is more difficult than political change. Have you been more encouraged or disheartened over the past couple years in the wake of passing the two acts in 2022?
First of all, I wake up every day optimistic because when you’re in advocacy work, you have to be. It doesn’t serve you well to be pessimistic about anything, especially in this hyperpolitical time that we live in. And now when you just factor in that it’s an election year, the stakes are even higher. If we can get this done in this current climate, this would be actually a bigger hurdle than the first one.
But I see success in the work we’re doing every single day. If I hear from one survivor every single day, as I do, that my laws have helped them and help them seek justice and not be shoved into secrecy, then I’m going to wake up the next morning and keep fighting for the next group of people.
Culture is so ingrained in us at a young age and changing those mindsets and behaviors sounds simple on its face, but that’s not the way it works. I honestly don’t understand why people immediately become negative towards people who have the courage to come forward. I don’t understand why as a culture we immediately think that we’ve got to get rid of it.
Somehow, I’m hoping that by changing the laws, it starts to then change behavior. Because now the person who was doing that behavior knows you have a voice. It was amazing to pass these laws, but if they’re also working to stop the behavior, then that’s even better. It all feeds into changing culture, which could take a much longer time.