Sunday, 11 October 2009

Senator Al Franken: Law Reform And Raped Employees

In a speech both legally literate and passionately progressive, Senator Al Franken has urged reform of the US law of public contracts so to prohibit contractors who do not allow raped employees access to the civil courts.

All four female Republican senators voted for this amendment, though thirty male Republican senators voted against. Sadly - for me - they included John McCain.

As a public contracts lawyer, I am well aware of the usual arguments against using the law to impose non-commercial obligations on contractors. And sometimes public bodies do over-reach themselves.

However, there is a more fundamental principle of access to the courts and, for reasons which Senator Franken sets out with great eloquence, this amemdment is both morally right and legally appropriate.


Ivan said...

If an employee suffers a rape or the like, how could a company deny them access to the court?
This looked very odd to me at first glance, so I looked a little further what this was about.

It turns out it started off about a case concering a worker employed by KBR/Hallibuton in Iraq, who alleges she experienced some very unpleasant things there at the hands of her coworkers. So presumably one might allow in this case that the courts having direct jurisdiction over the matter were the severely dysfunctional Iraqi courts. So remedy was sought against the company in the US courts. Contractual details meant that the employing company could try to insist upon use of its own internal arbitration procedures. In fact it failed in its attempt to do that in the federal courts, but presumably they might try and tie up the details a bit better next time.

So in fact this isn't really a case of trying to impose non-commercial rules on contractors (which I do dislike), it is about protecting employees of private contractors who are doing the US's work in a place outside of the US courts direct jurisdiction, and where that country's laws might fail to do the job.

Internal arbitration can be misused in the other direction. A case occurred at Merton College Oxford, quite some time after I left the place. This is from memory, which is known not to be 100% reliable. Student A accused student B of a sexual offence via the college internal discipline system. Following an internal procedure, the college ordered the expulsion of B. Student B said that the college had in effect declared him guilty of a serious offence in a kangaroo court without proper consideration of evidence, etc, which was grossly unfair. Rather the matter should be referred to the police. There was a huge publicity over the case, and the police were eventually involved. Either Student B was found not guilty, or the case was dropped for lack of sufficient evidence. Either way, he regained his reputation and was reinstated by the college.

The Chemist said...

@Ivan Actually, as people working for a company working with the United States armed forces, they are bound by US law as per the Military Extraterritorial Jurisdiction Act of 2000.

The individuals involved can be prosecuted, though the process would entail going through military law enforcement agencies.

I don't know if she ever got the men to end up in prison, but she's suing the company KBR alleging they set up a hostile environment where women were continually sexually harassed. That was, I think, the crux of her suit.

I should also say, I am not a lawyer.

Niklas said...

So Al Franken finally got his seat after all the recounts? An excellent start to his time in the Senate.