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No More Rape By Contract

Lauren

Senator Al Franken passed a major piece of legislation today, a major warning for the defense contractors hired by the U.S. government and their disregard for their female employees. It’s notable that all women in the Senate, Democrat and Republican, voted in favor of the amendment while thirty Republican men voted against it.

In 2005, Jamie Leigh Jones was gang raped by her co-workers while working for defense contractor KBR/Halliburton in Baghdad, and was then detained in a shipping container for over 24 hours without food or water and told that if she sought medical treatment “she’d be out of a job.” Afterward, Jones was prevented from taking the case to court because her contract stipulated that any sexual assault allegations could only be heard in private arbitration.

The Franken amendment withholds contracts from these companies “if they restrict their employees from taking workplace sexual assault, battery and discrimination cases to court.”

The Department of Defense opposed the bill. Republican Sen. Jeff Sessions of Alabama was rather vocal about his opposition, maintaining that “Franken’s amendment overreached into the private sector and suggested that it violated the due process clause of the U.S. Constitution.”

Apparently because companies, not women, deserve due process under the law. And because corporations should be allowed to abuse and aid in the abuse of their employees regardless of all civil and criminal laws designed to protect them!

More power to designing protections for an individual’s rights as a citizen and worker, especially when the taxpayers are footing the bill.

25 thoughts on No More Rape By Contract

  1. This is excellent news. I work for a subsidiary of KBR and I had to sign that exact agreement when my company was acquired last year. I hated signing it, but I really didn’t have any other choice–it was sign or lose my job.

  3. Even after living in the US all these years, I am honestly amazed that people in Congress stood AGAINST something like this. I hope that’s something that can be rolled out next year come election time and used against them.

  5. Wow. I again have to admire Jamie Leigh Jones’s strength and bravery in testifying before Congress about the crimes against her. I’m very glad to see it’s led to legislative change.

  6. Go Big Al! Now how about protecting women in the military who are subject to the same kind of assault and exploitation by the very people who are supposed to be “getting their back.”

  8. Overreach my ass. I’m pretty libertarian, politically, and Sessions doesn’t know what he’s talking about. The legislation passed doesn’t ban this kind of clause in a contract (which some proponents of limited government might object to), all it says is that companies who wish to feed at the public trough must abide by the basic rules of our society. A corporation can still choose not to abide by those rules, but then their potential employer (the State, in this case) will choose not to consider their bid. Welcome to the free market, asshole.

  9. I’m regularly surprised by how much I love AL Franken as a senator. I don’t know why I am surprised. He is clearly awesome.

  10. I’m reasonably sure that this sort of arbitration coercion is already by implication illegal. These are criminal issues, and they go to criminal courts. Even in terms of civil court (financial penalties) terms, these clauses are highly questionable, since we’ve gone through many of the same issues (with regard to black labor rights) Post-Reconstruction during the Teddy R-Warren Harding days. You simply cannot force people to sign away civil rights regarding worker’s rights to a forum outside of public due process. Even with *this* Supreme Court, I doubt defense contractors would win if anyone with sufficient determination got it through the courts. Corporations who pull this kind of thing are relying on intimidation to deprive rights.

  11. I’m reasonably sure that this sort of arbitration coercion is already by implication illegal. These are criminal issues, and they go to criminal courts.

    Incorrect. Jones was/is attempting to bring a civil suit against her employer. Her contract only specified arbitration for civil suits. It has nothing to do with criminal law.

  12. What shah8 said. I don’t understand how it can ever be legal to forbid a person to bring criminal charges. Criminal charges are *criminal* and forbidding a person to bring them is essentially witness intimidation, which is illegal.

    I continue to feel that if corporations are going to be given the rights of people, they need to be given the penalties of people too. For instance, corporate prison — the corporation may make no transactions except payroll for X amount of time, X being the length of the prison sentence. A corporation facing the inability to sell stock, goods or services for *any* amount of time will toe the line a lot better than a corporation faced with just having to pay a fine. Or corporate death penalty — the government rescinds your corporate charter, so the corporation is no longer a legal entity and all of its stuff is now owned by its shareholders, who are now legally liable for it since there’s no person there to take the risk anymore. (Or all of its stuff is owned by the government and the shareholders forfeit everything.)

    If an individual says “Report this crime and I’ll make sure you lose your job,” they can be thrown in jail… but a corporation is not only allowed to, but allowed to win government contracts after they do it? Insane. Not only should KBR lose its government contracts, but its leadership should face criminal charges for witness intimidation.

  13. These are criminal issues, and they go to criminal courts.

    The bill is aimed at mandatory arbitration for the civil suit, though. re: the actual arbitration clause: isn’t it pretty standard fare to require all claims arising from employment to be handled in arbitration? Is there anything more to it than that?

    You simply cannot force people to sign away civil rights regarding worker’s rights to a forum outside of public due process.

    Sure you can; that’s all arbitration clauses do, in fact. My read of your argument is that there are some arbitration clauses that violate public policy, but I didn’t see any PP arguments in previous motions to oppose dismiss civil suits.

  14. JPE, the problem is that a lot of these cases won’t ever see the inside of a criminal court room because of jurisdictional and evidence-gathering issues, so civil suits are the only realistic way to seek justice. Also, when it comes to contract work in places like Iraq, the line between “in the course of employment” and in your private life is blurred. It is standard for employment issues to be handled in arbitration, but I’m not actually sure it’s standard for all civil claims tangentially related to employment to be arbitrated. Jones was harassed and then assaulted in her bedroom after-hours (as I understand it, she was pulled from her room into her holding cell). She was assaulted by co-workers, and her housing was provided by her employer, but it seems a little broad to say that contract workers have no sphere of privacy or personal space, and everywhere they go — even outside of the work day — is in the course of their employment.

    The Franken bill addresses that problem. And just because there haven’t been public policy arguments in previous motions to dismiss civil suits doesn’t mean that public policy problems don’t exist. Those issues, again, are addressed by this bill.

  15. The 5th circuit agreed w/ you, Jill, as do I. The attacks simply weren’t within the scope of employment as contemplated by the arbitration agreement.

  16. All of that said, as I understand it, the current arbitration clauses don’t prevent criminal charges from being brought. What they do is prevent people like Jones from being able to sue her employer. Her individual co-workers could, in theory, still be criminally prosecuted.

    The problem though, as I said above, is that when crimes like sexual assault happen in places like Iraq, they are awfully hard to prove in American courts. The Bush administration also drafted a series of protections for contractors who commit crimes abroad — the short version is that the generally can’t be tried in Iraqi courts and they can’t be tried in American courts. So the individuals who assaulted Jones are very unlikely to face criminal charges. It’s also basically impossible to hold corporations accountable for criminal acts without a civil case — in other words, while the individuals who assaulted Jones may be criminally prosecuted (although under these circumstances even that is unlikely), Halliburton as a corporation won’t face any consequences in criminal court. The only way Jones could get to Halliburton is through a civil case (i.e., suing them). Halliburton is concerned with protecting itself, which is why it institutes arbitration clauses. That way it can’t be sued, and all of the accusations against it have to be kept confidential.

    That’s why this bill is important: Because here, civil courts are the only realistic recourse.

  17. I hope the future campaign opponents of these GOP critters who voted against this find this on the front burner of every campaign ad — “Do you really want to vote for a man who openly voted to prevent court action against someone who kidnapped and raped a woman?”

  18. I don’t get how mandatory arbitration clauses are worth the paper they are printed on — at least within the Madisonian/Hamiltonian framework of our system of government being based on “ambition being made to counteract ambition”.

    A corporation has the ambition to force employees into arbitration? Well a judge has an ambition also to hear cases and make a splash ruling on them.

    Thus, if person X sues their employer in spite of a mandatory arbitration clause, a judge would still say “ok — I’ll let this suit pass” and really what can the employer do? Countersue based on breach of contract because the employee violating the mandatory arbitration clause?

    In a Madisonian/Hamiltonian system a judge wouldn’t through out a claim of “I was raped on the job and my employer was negligent in dealing with what led up to the rape” because it would be bad publicity for the judge. And it would really look bad for a corporation to countersue.

    Of course, our system deviates form the Madisonian/Hamiltonian ideal because ambition is not made to counteract ambition … which is why we are bogged down in Iraq in the first place: rather than being able to score political points by calling GW Bush on his lies, savvy politicians knew they had to just play along.

  19. Related topic: The <a href="http://online.wsj.com/public/resources/documents/091509halliburton.pdfFifth Circuit Court ruling in favor of Jones taking the civil case to court. Short answer: Judge Rhesa Hawkins Barksdale ruled there is nothing in the arbitration agreement that covers sexual assault.

    Under these circumstances, the outer limits of the “related to” language of the arbitration provision have been tested, and breached. Halliburton/KBR essentially asks this court to read the arbitration provision so broadly as to encompass any claim related to Jones’ employer, or any incident that happened during her employment, but that is not the language of the contract. We do not hold that, as a matter of law, sexual-assault allegations can never “relate to” someone’s employment. For this action, however, Jones’ allegations do not “touch matters” related to her employment, let alone have a “significant relationship” to her employment contract.

  20. What shah8 said. I don’t understand how it can ever be legal to forbid a person to bring criminal charges. Criminal charges are *criminal* and forbidding a person to bring them is essentially witness intimidation, which is illegal.

    Legally speaking, there is no such thing as a person “bringing criminal charges.” Criminal charges can only be brought by the State. We talk about about crime victims not “wanting to press charges,” but this means they tell the prosecutor they don’t want charges brought. Since it’s very difficult for the prosecution to win a criminal case if its key witness is uncooperative, charges are rarely brought in cases about individual acts of violence if the victim doesn’t want to press charges.

    I haven’t done any research on this, but I’m sure a contract that says “if I commit a crime against you, you will refuse to cooperate with the prosecutor in bringing charges against me” would be unenforceable.

  21. Thus, if person X sues their employer in spite of a mandatory arbitration clause, a judge would still say “ok — I’ll let this suit pass” and really what can the employer do? Countersue based on breach of contract because the employee violating the mandatory arbitration clause?

    The employer would appeal, arguing that the judge’s refusal to enforce the contract was a violation of the Uniform Arbitration Act. If the appellate court ruled against the employer, they’d appeal again, and so on up to the Supreme Court. (In reality, they’d almost certainly settle, but if they didn’t want to settle they’d just appeal further.)

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