When former Fox News anchor Gretchen Carlson sued her ex-boss, Roger Ailes, her lawsuit outlined what employment attorneys call an all-too-familiar tale of sexual harassment: comments about her legs, instructions to wear certain types of clothing, even an overt sexual proposition.
But there was one key difference. The suit didn’t name her employer, but rather just the Fox News chairman himself, leaving the network out of the fray. It’s this omission that could make the difference between whether the case — which has garnered significant media attention since its filing July 6 — continues to play out in a public forum or is swept behind closed doors in private arbitration proceedings.
Carlson sued Ailes in a bombshell complaint claiming, among other things, that he suggested in a meeting that they “should have had a sexual relationship a long time ago.” Ailes immediately denied the allegations, and the suit has been making headlines since as each side accuses the other of litigating in the press.
Ailes has sought to compel arbitration of Carlson’s claims, citing a provision in her contract with Fox. But Carlson says he can’t invoke the agreement because he’s not party to it. Ailes, in turn, has claimed that the decision to leave her employer out of the suit is a calculated move to avoid arbitration, a claim her attorney denies.
Thomas F. Doherty, a Newark, New Jersey-based partner at McCarter & English LLP who has litigated cases against Carlson’s attorneys, said the decision to litigate the case in the Garden State even though all of Ailes’ alleged conduct occurred in New York may stem from the differences in the two states’ approaches to arbitration.
New Jersey state courts in recent years have become increasingly hostile toward arbitration and found multiple ways to invalidate arbitration agreements, Doherty said, whereas federal court could be a friendlier place for Ailes to litigate the issue.