Employee Dispute Resolution Program for Rape?

[Burton]

KBR actually has the stones to try and get Jamie Leigh Jone's suit against them dismissed on the basis that employees sign contracts in which they agree to resolve disputes and claims against the company through an arbitrator.

Somehow I don't think felonies were being considered when they wrote that contract.

[Mr. Moto]

Much as I might feel otherwise when I open my cable bill, companies can't rape people. That's a person-on-person crime.

Now, certainly damages might apply, but that takes a lawsuit. Some lawsuits may be precluded by these arbitration agreements, but they certainly can't ban all of them.

[An Arky]

Yeah, not to say that KBR isn't slimier than a slug's ass, but that's a pretty standard opening gambit when a company gets sued. If the company was in the wrong, they can be sued, no matter what they make an employee sign.

[Billdo]

Somehow I don't think felonies were being considered when they wrote that contract.

Remember, in Anglo-American jurisprudence there are broadly two types of litigation, "criminal" in which the government is prosecuting to imprison or fine an offender for a "breach of the peace", and "civil" in which one party is suing another for monitary damages caused (or sometimes an injunction) as a result of the actions of the other party.

Here, she would likely be suing KBR for money damages as a result of bodily assault, a civil tort, and such claims would very likely be covered by a contractual arbitration clause.

This would be very different from a prosecution for rape (a felony), which would be brought by a prosecutor on behalf of "the people", "the state", "the Queen" or some other term characterizing the government as a whole.

[Bricker]

Yeah, not to say that KBR isn't slimier than a slug's ass, but that's a pretty standard opening gambit when a company gets sued. If the company was in the wrong, they can be sued, no matter what they make an employee sign.

I'm not so sure that's true.

Well, literally it's true -- the company can be sued. But can a suit prevail if the company's defense is: "We previously agreed with this employee that any disputes between us would be settled by arbitration, so this lawsuit of hers is barred by that agreement?"

I don't know. What circumstances have to exist for a court to set aside that requirement and say, "Don't care what your agreement said about arbitration; we'll permit this suit to continue?"

[Mr. Moto]

I don't know if it is the same everywhere, but I found this: (http://alglaborlaw.blogspot.com/2005/01/arbitration-clauses-in-employment_27.html)

But the simple inclusion of an arbitration clause does not necessarily preclude access to the courts. If a court finds that the employment agreement is an “unconscionable contract,” the court can refuse to enforce the arbitration clause (California Civil Code §1670.5(a)).

Validity of Arbitration Clauses
So what constitutes an unconscionable contract? In brief, a contract is unconscionable if it is an “adhesion contract,” which is to say that there is no equal bargaining power, no real negotiation, and an absence of meaningful choice (Ellis v. McKinnon Broad, Co. (1993); American Software, Inc. v. Ali (1996); Circuit City Stores v. Adams (2001)). Under California law, unconscionability consists of two components: (1) procedural; and (2) substantive.

Firstly, the procedural element focuses on two factors: oppression and surprise. Secondly, the substantive element focuses on “overly harsh” or “one-sided” terms within the contract (A&M Produce Co. v. FMC Corp (1982)). Arbitration clauses must meet certain requirements to be lawful, including “provid[ing] for more than minimal discovery,” and “not requir[ing]] employees to pay either unreasonable costs or any arbitrator’s fees or expenses as a condition of access to the arbitration forum” (Armendariz v. Found Health Psychcare Servs. (2000)).

What to do First?
Both procedural and substantive unconscionability must be present before a court will refuse to enforce a contract and its arbitration clause.

[Burton]

It's true this is a tort suit and I don't believe anyone was charged with any kind of assault due to the alleged suppression of evidence by KBR. I'd be very surprised in this instance if the court sides with KBR. Even though it is a tort the acts alleged by the plaintiff are in some part illegal. What makes even that issue murky though is that they all occurred in Iraq where as we've seen so far US citizens have murdered people with no consequence other than a loss of employment.

[Happy Scrappy Hero Pup]

The government can also charge the corporate entity as something along the lines of an accessory to rape, which is a criminal charge.

If a supervisor, whose job it was to ensure that rapes did not happen, while acting in the course of his employment, allowed the rape to happen by shirking an affirmative obligation, or covered the rape up, or knew or should have known that the rape was likely to happen, he and the corporation can be charged.

I assume that Bricker, having subscribed to this thread, will be along to clean up the above paragraph, but my White Collar Crime final was a week ago and I have motions to write and a paper to finish by tomorrow, so any differentiation between the respondeat superior and the Responsible Corporate Officer approaches to criminal liability for the corporate entity will have to be done by those less flustered and more practiced than I.

[ASAKMOTSD]

I am kind of surprised that they were not trying to get 200 lashes for her, too...

[gonzomax]

The point of the contract clauses were to allow Blackwater and KBR to go along with business as usual. They are not designed to give justice, but to impede it. It has the feel of new car contracts . They now have clauses that deny your right to sue them and force you to an arbitration board they set up to get legal retribution. They are building roadblocks to a persons right to the judicial system .It is wrong.

[AskNott]

When she was given a medical exam after the rape, the rape kit evidence was turned over to KBR. :smack: KBR lost the evidence. So, while a corporation did not rape her, KBR obstructed justice.

When all these no-bid contracts were set up with the provisional government, Paul Bremer ordered that contractors would be responsible only to the provisional government, not to the US, and not to any Iraqi authority. Even though sovereignty was later turned over to the new Iraqi government, contractors are still invulnerable to nearly all prosecution.

[Bricker]

The government can also charge the corporate entity as something along the lines of an accessory to rape, which is a criminal charge.

If a supervisor, whose job it was to ensure that rapes did not happen, while acting in the course of his employment, allowed the rape to happen by shirking an affirmative obligation, or covered the rape up, or knew or should have known that the rape was likely to happen, he and the corporation can be charged.

I assume that Bricker, having subscribed to this thread, will be along to clean up the above paragraph, but my White Collar Crime final was a week ago and I have motions to write and a paper to finish by tomorrow, so any differentiation between the respondeat superior and the Responsible Corporate Officer approaches to criminal liability for the corporate entity will have to be done by those less flustered and more practiced than I.

Assuming facts not in evidence -- while I did post, I didn't subscribe, so it's a matter of luck that I saw this again.

As a former public defender, the number of times I had occasion to engage in study or exercise of responsible corporate officer theories of corporate criminal liability were pretty much precisely zero. Having thus disclaimer actual expertise, I'll happily endorse the basic concept above -- to the extent that a high-enough official in the course of his employment and for the benefit of his employer took criminal actions, criminal liability for the corporation could result -- the devil being, of course, in the details.

When she was given a medical exam after the rape, the rape kit evidence was turned over to KBR. KBR lost the evidence. So, while a corporation did not rape her, KBR obstructed justice.


They lost it deliberately? Or they made a mistake? If the latter, it's hard to see how that could amoun to criminal responsibility. What's the theory that permits that charge to stick?

[Bricker]

I don't know. What circumstances have to exist for a court to set aside that requirement and say, "Don't care what your agreement said about arbitration; we'll permit this suit to continue?"


I don't know if it is the same everywhere, but I found this: (http://alglaborlaw.blogspot.com/2005/01/arbitration-clauses-in-employment_27.html)Secondly, the substantive element focuses on “overly harsh” or “one-sided” terms within the contract (A&M Produce Co. v. FMC Corp (1982)). Arbitration clauses must meet certain requirements to be lawful, including “provid[ing] for more than minimal discovery,” and “not requir[ing]] employees to pay either unreasonable costs or any arbitrator’s fees or expenses as a condition of access to the arbitration forum” (Armendariz v. Found Health Psychcare Servs. (2000)).


If this is correct, is there some showing that the KBR arbitration contract contains "overly harsh" or "one-sided" terms?

[Mr. Moto]

When she was given a medical exam after the rape, the rape kit evidence was turned over to KBR. :smack: KBR lost the evidence. So, while a corporation did not rape her, KBR obstructed justice.

Actually, according to a website run by Ms. Jones, the State Department had possession of the rape kit and it was sent to Washington.

I don't know why this would be so, but this little fact has since been scrubbed from the website. Google Cache has it. (http://64.233.169.104/search?q=cache:G4mfZRLd_AwJ:www.jamiesfoundation.org/Jamie.htm+http://www.jamiesfoundation.org/jaime.htm&hl=en&ct=clnk&cd=1&gl=us&client=firefox-a)

[brazil84]

In my opinion, employees are usually better off arbitrating these sorts of claims. Yes, they lose the chance of a multi-million dollar jury verdict. But they get one huge advantage in return.

See, arbitrators get paid by the hour. Judges get paid a salary. If the arbitrator dismisses your case before trial, it means less money for him or her. If the judge dismisses your case before trial, it means less work but the same amount of money.

Guess who dismisses cases before trial more frequently: judges or arbitrators?

[gonzomax]

Depends who selects the arbitrators and pays for the board. The auto dealers set up the arbitration board and they have a huge winning percentage.

[brazil84]

Depends who selects the arbitrators and pays for the board. The auto dealers set up the arbitration board and they have a huge winning percentage.

I don't know anything about that. The vast majority of employment disputes in the U.S. that are arbitrated go through either AAA or NASD (now FINRA).

[AskNott]

Jones told ABCNews.com that an examination by Army doctors showed she had been raped "both vaginally and anally," but that the rape kit disappeared after it was handed over to KBR security officers.
http://abcnews.go.com/Blotter/Story?id=3977702&page=1
The page also has video features from 20/20 and ABC News about Jones and another woman who was assaulted twice, once by her boss, and once by a State Dept. employee.

[Mr. Moto]

http://abcnews.go.com/Blotter/Story?id=3977702&page=1
The page also has video features from 20/20 and ABC News about Jones and another woman who was assaulted twice, once by her boss, and once by a State Dept. employee.

I am not disputing her assault claims, but I'd like you to look at the web site I linked. Why does she claim in one place that the rape kit was lost and claim in another that it is not lost?

[RickJay]

Much as I might feel otherwise when I open my cable bill, companies can't rape people.
Funny, I get the same feeling whenever I open the electric bill.

[Gfactor]

If this is correct, is there some showing that the KBR arbitration contract contains "overly harsh" or "one-sided" terms?

I actually looked at the provision when I was poking around on PACER for the pit thread: http://boards.straightdope.com/sdmb/showthread.php?t=447391 (in post 31, I briefly summarize some of her arguments) I don't have it in front of me, but my reaction was exactly the opposite. It's a pretty run-of-the-mill arbitration agreement, which actually opens KBR up to arguments that the agreement doesn't go far enough to cover intentional torts committed by other employees not in the course of employment.

She is arguing both that public policy bars the contract and that some of the claims aren't covered by the contract (and some other stuff).