Remarks on Defense Contractor Mandatory Arbitration Amendment
Mr. President, the amendment I offer today is inspired by the courageous story of a young woman who has dedicated four years of her life to make sure no other woman lives through her nightmare.
Four years ago, at the age of 19, Ms. Jamie Leigh Jones signed a contract to become an employee of KBR, then a Halliburton subsidiary. That contract contained a clause which required her to arbitrate any future dispute against her employer. This means it forced her to give up her right to seek redress in court if she was wronged. At the time, Ms. Jones had no idea what implications this seemingly innocuous, fine-print clause would have.
Ms. Jones arrived in Iraq in July of 2005. Immediately, she complained to supervisors about the hostile conditions imposed by KBR—she was constantly being harassed by her male colleagues, and was housed in barracks with 400 men and only a few women. Her pleas for safer housing were ignored. Four days after her arrival, Ms. Jones was drugged and gang raped. She requested medical attention, and a doctor administered a rape kit. Parts of that rape kit have since mysteriously disappeared. After Ms. Jones reported the rape to her supervisors, she was locked in a shipping container with an armed guard and prohibited from any contact with the outside world. They locked her in a container?!? It was only after she convinced one of the guards to lend her a cell phone that she was able to talk to her father, who enlisted the help of Representative Ted Poe, a Republican congressman from Texas, to arrange for her safe return to the United States.
But, Ms. Jones’ horrific plight did not end there. Having survived this ordeal, most of us would expect that she would have her day in court to seek justice for the actions and inactions of her employer. Instead, KBR sought to enforce the arbitration clause in Ms. Jones’ contract, and tried to force her into arbitration. So, over the past three years, Ms. Jones has been fighting for her right just to bring a lawsuit. And KBR has been fighting her every step along the way. This is simply too long for a rape victim to wait, just to have her day in court.
The only thing more outrageous than KBR’s actions here is that Ms. Jones’ story is not isolated. Since Ms. Jones courageously shared her story, many more women have come out of the shadows, saying the same thing happened to them. And yes, some of these women are still waiting for their day in court, too. Others were forced into arbitration, and their outcome remains secret due to the non-disclosure clauses in the arbitration agreement.
Arbitration has its place in our justice system. For two companies haggling over the price of goods, arbitration is an efficient forum, and the arbitrator will undoubtedly have the appropriate expertise. The privacy that arbitration offers can protect their proprietary business information. But arbitration has its limits. Arbitration is conducted behind closed doors, and doesn’t bring persistent, recurring and egregious problems to the attention of the public. Arbitration doesn’t ever allow you a jury of your peers. Arbitration doesn’t establish important precedent that can be used in later causes. Many of our nation’s most cherished civil rights were established by individuals bringing claims in court, the court ruling in their favor, and then extending the protection of those rights to anyone in a similar situation. Arbitration does have its place in our system, but handling claims of sexual assault and egregious violations of civil rights is not its place.
Ms. Jones won a small but important victory just a few weeks ago. The conservative Fifth Circuit Court, encompassing Texas, Louisiana and Mississippi, ruled that most of Ms. Jones’ claims do not belong in arbitration, and she is entitled to her day in court. The Fifth Circuit ruled that even when you sign an employment contract requiring arbitration, there are some rights to sue your employer that just can’t be signed away. These include assault and battery, infliction of emotional distress, false imprisonment, and negligent hiring, retention, and supervision. But the Fifth Circuit’s ruling only applies in the Fifth’s Circuit’s jurisdiction, so it’s not settled law throughout the United States. Who can say what might happen to claims filed in other circuits? My amendment seeks to extend much of the Fifth Circuit’s reasoning to government contractors who continually subject workers to these so called “mandatory arbitration” clauses. The government shouldn’t be doing business with defense contractors like KBR as long as they continue this practice.
The amendment I’m offering today seeks to narrowly target the most egregious violations. The amendment applies to defense contracts, many of which are administered abroad, where women are the most vulnerable and least likely to have support resources. The amendment will apply to many contractors that have already demonstrated their incompetence in efficiently carrying out defense contracts, and have further demonstrated their unwillingness and their inability to protect women from sexual assault.
This seems pretty clear-cut. Here's some footage of Franken in action during a hearing on this matter (via Blue Gal):
Again, pretty clear-cut. Arbitration has its place, but also its limitations, which are painfully apparent here. Jamie Leigh Jones' treatment was horrific, and sounds like some nightmare scenario devised for a TV crime show. She should never have been put in that situation in the first place. She certainly shouldn't have been confined afterwards, and Halliburton/KBR should have punished the perpetrators and made amends to Jones, rather than using legal obstruction against her to prevent justice.
Jones has been gutsy to keep pursuing this. And Franken is doing exactly what an elected official should be doing – correcting a gross abuse of power by a mighty entity against a citizen. He gives a damn. And he sticks up for Jones, who's clearly grateful, and later said, "It means the world to me... It means that every tear shed to go public and repeat my story over and over again to make a difference for other women was worth it."
Back when he was on Air America, Franken would often bring up the Truman Committee, and how Truman went after war profiteers during WWII. When Joe Lieberman was a guest, Franken pressed him on why he wasn't doing the same thing, since Lieberman at that point (after the 2006 midterms) had oversight. Lieberman dodged the question, and (unless I missed it), didn't come back as a guest. So Franken has shown a consistent interest in fighting corruption in general. Still, allowing rape of employees is about as bad as it gets (along with contracting torture).
C&L and Think Progress have more, and this Balloon Juice thread has some legal discussion. However, I thought Franken addressed the procedural issues quite well, and all the female Republican senators voted for Franken's amendment. The only people to oppose it were Republican men. I really can't see any honorable, principled stance in opposing it after listening to Jeff Sessions' arguments and seeing the double standard practiced by the amendment's opponents. As usual, The Daily Show captures the full absurdity:
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|