Jury Trials – Not Arbitration – Find the Truth, as Jamie Leigh Jones Case Shows
By Paul Bland, Senior Attorney
Many recall the enormous amount of national publicity that surrounded the allegations of a KBR-Halliburton employee in Iraq named Jamie Leigh Jones. Jamie testified in both houses of Congress, made several television appearances, was prominently featured in the documentary Hot Coffee (in which I also appeared), and had her name attached to a landmark piece of legislation. The Jamie Leigh Jones Act was introduced by Sen. Franken, and it essentially barred the Department of Defense from entering into large contracts with companies that forced their employees to “agree” to pre-dispute binding arbitration of claims involving sexual violence or involving any violation of Title VII’s protections against gender discrimination, harassment, etc. Many people in the community of advocates who have been working on the arbitration issue, including me personally, recounted Jamie’s shocking story of gang rape, drugging, imprisoning, physical injury, etc.
Despite the presence of a mandatory arbitration clause in her employment agreement, Jamie challenged the application of the arbitration clause to her case successfully in the U.S. Court of Appeals for the Fifth Circuit, and eventually her case went to trial. She lost, before a jury.
I urge all of you to read Stephanie Mencimer’s newly published article about Jamie’s case.
Mencimer, a journalist at Mother Jones magazine, has covered the issue of forced arbitration with great energy and fairness for more than 10 years. She is the author of a book about the lies told by the tort reform movement in support of taking away peoples’ rights. I think Stephanie is one of the best journalists in the entire country.
A little over two years ago, Mencimer stirred up a hornet’s nest with a story predicting that Jones would lose in her trial against KBR. A great many details about the case are set forth in Stephanie’s story. I speak only for myself, and others may have sharply different views, but I personally now feel that I was fooled. I wish, in hindsight, that I had not personally told Jamie’s story as often in policy advocacy and to journalists, etc., without knowing more of the evidence.
Jamie’s loss at trial in no way undermines the critical reality that we need access to courts more than ever. I think that Mencimer’s powerful reporting makes it clear why trials matter: they are a way to publicly get at the TRUTH. When I am a policy advocate (as opposed to a lawyer for a particular client or set of clients), I do not advocate against forced arbitration because I think any given person should or shouldn’t win their case. I am against forced arbitration because it is unjust.
Apart from systemic issues of corporations winning more often in arbitration, and employees who do win getting smaller awards in arbitration, forced arbitration is a secretive system of corporate-controlled tribunals. Cases are swept out from public sight, producing decisions that are never reviewed in a meaningful way by courts.
The public trial in the Jones case got at the truth. It may not be the truth a lot of us who had met her and listened to her years ago expected, but it was the truth as found by a jury of her peers. Mencimer describes the evidence in detail.
It’s likely there will be quite a bit of discussion about this case in the months to come. My own answer to people will be a great deal like the answer Sen. Al Franken gives in the article: I may well have been wrong about the merits of this particular case when I spoke about it years ago, and I find Mencimer’s reporting to be extremely powerful.
But most importantly, to me, the facts strongly support that forced arbitration of employment claims – like consumer claims, medical claims, and investor claims – is wrong. It is un-American and I oppose it, and the outcome of this trial does not shake that view one bit; knowing that a jury is able to determine fact at trial makes that view even more solid.