U.S. Sen. Al Franken, who announced Thursday he would resign “in the coming weeks” following accusations he inappropriately touched women, used sexual assault victims to argue against tort reform legislation at a Senate hearing last month.
His comments were made during a Senate Judiciary Committee hearing, “The Impact of Lawsuit Abuse on American Small Businesses and Job Creators,” held Nov. 8. The hearing was supposed to center on several legal reform bills currently in the U.S. Senate after being approved by the House earlier this year.
Franken, a Democrat, took issue with forced arbitration clauses, in particular. He and other Democrats seemed focused on the Consumer Financial Protection Bureau's unsuccessful attempt to ban clauses that prohibit class action lawsuits and send certain disputes to arbitration even though other reforms to class action and asbestos lawsuits are on the table.
The Minnesota senator has been a critic of such arbitration provisions in consumer and employment contracts, saying they “thwart the ability of workers and consumers to hold corporations accountable for wrongdoing, even in the most egregious cases.”
Franken pointed to former Fox & Friends host Gretchen Carlson’s Oct. 10 oped in the New York Times, in which she wrote that many employment contracts include such clauses, thus benefiting employers.
Franken proceeded to ask Elizabeth Milito, senior executive counsel for the National Federation of Independent Business’ Small Business Legal Center, for her input on the topic in what can be described as an uncomfortable exchange.
“Do you think that clause prevents victims from speaking out, and, in your view, is that a problem?”
Milito responded that she could not speak to forced employment contracts because she did not now how widespread they are among the small businesses represented by NFIB.
“I didn't ask you how widespread they were. I just want a ‘yes’ or ‘no’ to my question,” a clearly irritated Franken said. “Do you think those clauses -- that mandate secrecy and prevent victims from speaking out -- in your view, is that a problem?"
Milito said she thinks businesses should have the freedom to contract with their employees, or with their banks.
Her answer didn’t satisfy Franken, who asked the question again after referencing Fox News.
“The employee has the right to take it to his or her attorney... so I don't think they're necessarily a problem,” Milito said.
Franken seemed taken aback by her answer. “Really?” he responded.
On Thursday, Franken delivered a speech from the Senate floor, saying some of the allegations against him are “simply not true” and that others he remembers “very differently.”
“I, of all people, am aware that there is some irony in the fact that I am leaving while a man who has bragged on tape about his history of sexual assault sits in the Oval Office, and a man who has repeatedly preyed on young girls campaigns for the Senate with the full support of his party,” Franken said, referring to President Donald Trump and Alabama GOP Senate hopeful Roy Moore.
During the hearing, he said the tort reform measures being discussed weren't needed.
“Now I know that there are bad actors out there – those who file frivolous lawsuits against hard-working and honest businesspeople – but these bills aren’t the solution,” Franken said.
“They don’t help weed out frivolous claims early on. They seek to deter meritorious claims by making class action suits so expensive, lengthy and onerous that people won’t bother to bring them in the first place.
“So we shouldn’t let the unscrupulous behavior of a few individuals undermine Americans’ fundamental rights when they experience a violation of their civil rights, are defrauded by powerful corporations or are seriously injured by a defective product.”
In 2009, Franken introduced an amendment to the Department of Defense Appropriations Act, saying he believed victims of sexual assault and discrimination deserve their day in court.
The Jamie Leigh Jones Amendment bans government funding of defense contractors who force employees to mandatory binding arbitration in the case of rape, assault, wrongful imprisonment, harassment and discrimination.
The legislation was inspired by the story of Jamie Leigh Jones, a 20-yr-old employee of defense contractor KBR stationed in Iraq who was allegedly gang raped by her co-workers and imprisoned in a shipping container when she tried to report the crime.
After returning home, she discovered a clause in her KBR contract banned her from taking her case to court, instead forcing her into an arbitration process that would be run by KBR itself.
“Today is a great victory for victims of assault and discrimination who deserve their rightful day in court,” Franken said, following the legislation’s Senate passage. “Too often, powerful interests silence the voices of folks like Jamie Leigh Jones. But because of her courage and her strength in speaking out, we’re one step closer to saying no one else will have to suffer through what she did. Her story inspired this change and it is just the beginning.
“I will continue to stand up for folks like Jamie Leigh and everyone who needs a voice in Washington.”
Ultimately, Jones got her day in court, and a federal jury ruled she was not raped and instead had engaged in consensual sex. The jury also ruled she was not fraudulently induced into signing the employment contract with the arbitration clause in it.
She was seeking 5% of the net work of KBR.
From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.
