You may have seen the news that Gretchen Carlson, a former Fox News anchor, is suing Roger Ailes, the Fox News Chair and CEO, for sexual harassment and retaliation.   One of the interesting things about the case is that – like a lot of people – Carlson has an arbitration clause in her contract requiring her to arbitrate all claims arising out of her employment

So how is she able to bring this case?

Well, Carlson is suing Ailes personally – not Fox News.  Her argument is that her arbitration agreement is with Fox News alone; Ailes is not a signatory to the agreement, and cannot benefit from it.

I first have to note that this argument is only available to Carlson at all because Ailes is wealthy, and (I assume) covered by insurance; most employees in similar situations don’t have the option of suing only their harasser (rather than their employer), because most individual harassers are likely to be judgment proof.

Beyond that, is Carlson right?  Is this a way around her arbitration agreement?

Well, according to Richard Frankel, there is a split of authority as to whether arbitration agreements to extend to agents of the signatories in their individual capacities, even when those agents were never parties to the agreement.  See Richard Frankel, The Arbitration Clause as Super Contract, 91 Wash. U. L. Rev. 531 (2014).  So there’s a real question as to whether Ailes has the right to enforce Carlson’s arbitration agreement, even though he was not a party to it.

Carlson’s attorneys are not giving up the fight so quickly, though.  They claim – with at least some support, see Arnold v. Arnold Corp., 920 F.2d 1269 (6th Cir. 1990) – that even when arbitration clauses extend to corporate agents, they only extend to actions taken by the agent in their capacity as agent; they do not cover actions taken by the agent on their own behalf.   In this case, Carlson’s attorneys apparently intend to claim that Ailes was not acting on Fox News’s behalf when he harassed Carlson, even though he may have been an agent of Fox for the purposes of retaliation.  Thus, the former claims need not be arbitrated, even if the latter claims must be.

Now, at least some courts have endorsed a concept of “concerted misconduct” that might preclude this kind of claim-splitting.  See Christopher Driskill, Note, A Dangerous Doctrine: The Case Against Using Concerted-Misconduct Estoppel to Compel Arbitration, 60 Ala. L. Rev. 443 (2009).   But more generally, I am concerned about the argument that employees are acting for their own gratification, and not on behalf of the employer, when they harass.  Courts have long been suspicious of respondeat superior in the context of harassment claims, suggesting (as Carlson apparently intends to argue) that harassment represents a personal frolic rather than a mechanism for maintaining institutional barriers to the advancement of underprivileged groups.  See Burlington Indus. v. Ellerth, 524 U.S. 742 (1998).  That means that a court could accept Carlson’s argument – particularly a court hostile to arbitration clauses – but perversely end up creating a lot of mischief for the many employees who rely on respondeat superior for any relief at all.

That said, there’s another aspect to this dispute that I find interesting.  According to the rumour mill, Roger Ailes has long been targeted for ouster by Rupert Murdoch’s sons.  If Fox News had been named as a defendant in Carlson’s suit, the company might have been forced to close ranks around Ailes.  But – ironically – because Fox News is not a defendant, the company appears to have the option of leaving Ailes twisting in the wind, and Murdoch’s sons in particular may use the lawsuit as an excuse to get rid of Ailes once and for all.