30 Republican Senators – all of them men, strangely enough – voted against Sen. Franken’s amendment to ban Federal funds going to any company that attempts enforcement of binding arbitration clauses in cases of sexual or civil rights abuse. The amendment is a response to the case of Jamie Leigh Jones, who alleges she was drugged, held captive, and repeatedly raped by fellow contractors while working for KBR Halliburton in Iraq. The employer claimed that her suit was subject to a binding-arbitration clause in her contract*, so she could not sue in Federal court.
Here is a list of those voting against the amendment:
Lamar Alexander (R-TN)
John Barrasso (R-WY)
Kit Bond (R-MO)
Sam Brownback (R-KS)
Jim Bunning (R-KY)
Richard Burr (R-NC)
Saxby Chambliss (R-GA)
Tom Coburn (R-OK)
Thad Cochran (R-MS)
Bob Corker (R-TN)
John Cornyn (R-TX)
Mike Crapo (R-ID)
Jim DeMint (R-SC)
John Ensign (R-NV)
Mike Enzi (R-WY)
Lindsey Graham (R-SC)
Judd Gregg (R-NH)
James Inhofe (R-OK)
Johnny Isakson (R-GA)
Mike Johanns (R-NE)
Jon Kyl (R-AZ)
John McCain (R-AZ)
Mitch McConnell (R-KY)
James Risch (R-ID)
Pat Roberts (R-KS)
Jeff Sessions (R-AL)
Richard Shelby (R-AL)
John Thune (R-SD)
David Vitter (R-LA)
Roger Wicker (R-MS)
One hopes that women and other fully-human persons in New Hampshire and other states represented by those Senators will remember this vote when they have the opportunity to exercise their own votes. As for me, I want to say that those Senators have brought a pile of shame on my gender, and I object strongly to their doing so.
As you’d expect, Jon Stewart had some things to say about it all.
*The KBR Halliburton claim for binding arbitration been rejected by an appeals court.
All of ’em male… well… except for Lindsay Graham…
how many male senators voted for the amendment?
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p>Your homophobic dig at Huckleberry Graham is over the top.
That these Senators voted in favor of the rape and kidnapping of women? That’s the implication. And you conveniently hide in asterisk form the 5th Circuit’s denial of arbitration of the plaintiff’s tort claim, i.e., she can sue her employer.
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p>Furthermore, in my reading of the summary, the Senate bill (a) singles out Halliburton and KBR, and (b) interferes with contracts, both of which likely make this legislation unconstitutional:
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p>Bill of attainder? Interference with and impairment of contracts? Try Article 1 Section 9 and 10 of the US Constitution.
After reading, “That these Senators voted in favor of the rape and kidnapping of women?”, I carefully re-read the post. There is no implication, there is an outright assertion of votes against a ban. Your summary issue is interesting, however. The link to the bill doesn’t seem to be working so I can’t evaluate your quote. What exactly is the legal weight of the summary vs the actual legislative language and does mentioning the specific party only in the summary a sufficient condition?
My comment about their having brought shame to my gender is because I share the gender with them. They have made us look bad.
Thanks, anyway.
Please explain to me why a client (the US Gov) isn’t permitted to avoid contracts with contractors (Halli, KBR, et al) who treat their employees in ways the client doesn’t find acceptable.
The amendment names KBR Halliburton, but does not single them out. Here, it’s in the bit you quote: “…or any other contracting party if such contractor…”
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p>As for “hiding” the appeals court decision – nonsense. If I was going to hide it, I wouldn’t have put it in the post at all. It’s peripheral to the point of the post, which is that 30 Republican Senators have no problem with a company attempting to deny employees their Constitutional access to the courts, even when those employees have suffered horrendous treatment. You’re with the 30 Senators, apparently.
Since the Thomas search results in the link have expired, here is the text of Franken’s amendment:
Franken’s amendment holds any government contractor accountable by banning “Federal funds going to any company that attempts enforcement of binding arbitration clauses in cases of sexual or civil rights abuse.” In other words, they can’t use use the arbitration clause in their employment contract to duck accountability for sexual and civil rights abuses.
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p>Since the incident occurred in Iraq where US sovereign law was not enforce, no criminal case could be brought against the alleged gang rapists.
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p>If the Jamie Leigh Jones case happened on US soil under US sovereign law would the arbitration clause in her employment agreement have been upheld and thereby block a criminal prosecution and/or a civil suit by her?
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p>Jamie Leigh Jones sued for civil damages back in the US and the courts found she could despite the arbitration agreement. I don’t know the courts reasoning for that. Do you?
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http://www.republicansforrape….
I’m not sure I understand what all this is about. A criminal charge is never subject to arbitration. The Federal Arbitration Act applies to “maritime transactions” and “contracts evidencing a transaction involving commerce.” When an employer signs a contract with an employee requiring arbitration, that hardly binds the government with respect to criminal charges.
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p>In general, I think federal courts routinely hold that civil rights claims of one sort or another can be subject to arbitration if they are within the scope of the parties’ arbitration agreement. I don’t have any expertise in this area, but I’m looking at the Digest (25TK146, for you lawyers out there), and I see headnotes like this:
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p>Of course, there are various defenses to enforcement of an arbitration clause, e.g., that it was procurred by fraud or duress, that the parties had unequal bargaining power, or whatever, but in general, I don’t see why civil claims like this can’t be arbitrable.
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p>That being said, I’m not sure why it’s disreputable to have opposed the Franken amendment. But maybe someone has a good case to make. It seems to me that if you think that claims of sexual harrassment in the workplace should not be arbitrable, then the thing to do is to amend the FAA, not to make particular rules for these contractors.
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p>TedF
…and “drugged, held captive, and repeatedly raped” aren’t really the same thing.
…hasn’t the court already held that the claims of assault and battery, false imprisonment, etc., aren’t related to the employment contract and thus are not arbitrable? It seems to me that what the Franken amendment does is add to that list the Title VII claims.
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p>TedF
So you say that the Franken Amendment adds rape to the list of Title VII claims and you also ask above why is it disreputable to oppose the Franken amendment?
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p>Opposing the addition of something as obvious as rape to the Title VII claims seems like a fairly disreputable action. In fact, I find “disreputable” to be a polite way to put it. No?
I’m sorry, I just don’t see it. The amendment would have forbidden the affected contractors from contracting with their employees to submit Title VII claims to arbitration. I just don’t think that’s so terrible. The policy of the law generally favors arbitration. For one thing, most Title VII claims do not involve rape. For another, the policy of the law is generally to favor arbitration, and in the absence of duress or coercion (which, if they existed here, I haven’t seen argued), I think that’s right.
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p>You write that “the Franken Amendment adds rape to the list of Title VII claims,” which leads me to believe that we may not be understanding each other. Just to be clear, the amendment would not amend TItle VII or change its scope in any way. It would just forbid certain arbitration clauses.
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p>TedF
The Franken amendment states:
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p>Why wouldn’t it be reasonable to to prohibit the Federal government from contracting with companies that require employees to sign away their rights under law? Why is it reasonable under any circumstances for an employee to turn over to an employer the right to decide whether the employee can sue or seek redress?
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p>Your defense of 30 knee-jerk Republicans is odd. The intent of the amendment seems to clear to the entirety of the Democratic delegation as well as a fair number of Republicans. Perhaps you are misunderstanding?
You ask: “Why is it reasonable under any circumstances for an employee to turn over to an employer the right to decide whether the employee can sue or seek redress?” Respectfully, I think it is you who are misunderstanding. By signing an arbitration contract, the employee is not giving up the right to sue or seek redress. He or she is simply agreeing that certain claims will be heard and decided by an arbitrator rather than by a court. The law generally favors arbitration agreements; the courts have upheld them in the Title VII context specifically; and so I think the onus is on you to say what’s wrong with that.
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p>But let’s suppose you’re right, and there is something wrong with arbitrating Title VII claims. Then isn’t the answer to change the Federal Arbitration Act to make such claims non-arbitrable rather than to use the power of the purse to impose such a rule on certain employers? That was my proposal earlier in the thread.
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p>As for the breakdown in the votes, I think this is a case of bad “optics” for the Republicans. If you frame the issue, as it has been framed in this thread, as an issue about rape, then it sure is hard to oppose the amendment. But if you frame the issue as an issue about what should be arbitrable, then it’s much easier to oppose the amendment. Speaking as a Democrat, I think that the Democrats’ framing of this issue takes a page from the Republican playbook–perhaps if Sen. Franken had called his amendment “Jamie’s Law,” that point would be more obvious.
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p>TedF
That helps me get a handle on the issue.
I did indeed read what you wrote incorrectly. And having zero training in the law, I have to admit that talk of titles, contracts and arbitration is a bit over my head, and, as a layman, I find your initial comment a little too vague. Basically, I’m more or less prodding you to tease out your argument so I can understand more clearly.
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p>So what you are saying is that opposing the idea of prohibiting the government from entering into contracts with parties who, by using these arbitration clauses, want to prevent victims who were drugged, held captive, and repeatedly raped from having their day in a US Court is not a disreputable idea?
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p>Additionally, from a political perspective, why put yourself on the side of the corporations that want to skirt the justice system via these arbitration clauses and side against victims of rape? It’s not disreputable to side with Haliburton/KBR over women who just want their day in court?
Let me ask you one, tblade: Why do you implicitly assert that putting a case before an arbitrator is inferior to putting it before a jury?
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p>(I should say that as a practicing lawyer, I do believe that arbitration is often inferior to the courts for lots of reasons, but now I want to tease out your argument, since it seems that you and others have simply assumed that if the claim is arbitrable, the employee loses).
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p>TedF
Two fold:
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p>a.) I’m admittedly ignorant to the way this all works.
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p>and
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p>b.) It seems that in this system Jamie Lee Jones, the woman who was the impetus behind this amendment, was prevent from filing a criminal complaint against her assailants and was prevented from suing for monetary damages. Furthermore, Haliburton/KBR was seemingly allowed to destroy evidence and legally get way with it.
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p>In sum, based on the Jones case alone, arbitration seems to benefit greatly the Haliburton/KBRs who already have much leverage due to the fact they are a billion dollar corporation who have the cash and the lawyers to find such loopholes and seems to not even remotely protect the employees in an adequate fashion.
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p>If arbitration wasn’t inferior from the employee’s standpoint, why would Haliburton/KBR have it wtitten in the contract for the first place. Clearly it is an unfair advantage they wanted written in to protect themselves if a case such as Jones’s arrived.
…and I’m not trying to give you a hard time. But a few point for your consideration:
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p>1. The arbitration clause has absolutely nothing to do with the criminal law issues. The government could prosecute (note that it’s the government, not Jones, who would prosecute a criminal case) notwithstanding the arbitration clause, though Neil Sagan claims elsewhere on this thread that the government would not have jurisdiction. I don’t know if he’s right or not, but the answer to that question has nothing to do with the arbitration issue.
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p>2. There are plenty of cases where an arbitration clause gets invalidated because one party tricked or forced the other party to sign. Is that what happened here? Maybe–I’d be interested in anything you know about that. But if you were satisfied that the contract was freely entered into on both sides, would you feel differently?
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p>TedF
You note that: “The arbitration clause has absolutely nothing to do with the criminal law issues.”
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p>Isn’t the civil redress the only area of redress when the corporations have been given immunity from prosecution by the Iraqi & U.S. Govts? As such I’d say the clause is very related because it represents a restriction on the only available option.
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p>I’d also not that while it is true that arbitration isn’t always inferior to actual civil trials, in practical terms they usually are, at least when the contract clause in question is between two parties of vastly differing power and resources. This is because, like anything, the devil is in the details (binding / non-binding?, who chooses the arbitor?, who incurs the costs?, what is the schedule?, etc.) and the corporation has more power in determining those details.
Parties choose arbitration, when they do choose arbitration, because it is generally quicker, cheaper, and private. In my experience, arbitration generally provides an inferior quality of justice, but that’s the tradeoff for arbitration’s advantages. There is a lot of literature out there about ways in which arbitration can advantage corporate defendants (who are repeate players) and disadvantage individuals, and I think there’s something to that. But I guess my overarching point is that there’s no reason to single out government contractors for special rules about this. If we don’t think that certain claims should be arbitrable, then just make them non-arbitrable by statute.
… is well taken. I guess in this case, the ‘singling out’ of contractors (all or just DOD? – this was an amendment to a military funding bill, yes?) with specific characteristics the ‘satisfying’ way to do it would be to point out how these special characteristics constitute an area in specific need of redress. It seems to me that the specific dangers here have to do with the legal limo that the employment contract puts the employee in, due to the nature of the work – in particular the fact that it took place in Iraq. In this case I think the amendment implies that the area in need of protection arbitration of “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention. ” I’d probably add that this may be a problem area in need of statutory redress, but that it may be limited to contractors and employees operating on foreign soil, where other legal avenues of redress can be more of a problem to non-existent. (I’d probably also want to include any contractor given any specific legal immunity in its operations by the DOD or State Dept.)
in this case KBR chooses, and KBRs wins an overwhelming number of the arbitrations. I remember reading this but I don;t remember the source.
any case of binding arbitration where the complainant gets to choose the arbiter. It’s like dueling – you issue a challenge, they get to choose the weapons. Instead of pistols at twenty paces, it’s the arbiter they usually use, in a state far from your home.
I’m not trying to give you a hard time; I prod at you because I want to learn. So thanks for your patience.
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p>I understand that Jones freely entered into her contract with KBR, and I get that she has no further legal recourse. But I do feel that people who enter into contracts with entities that are both funded with public money and making obscene, obscene profits shouldn’t have as much power stripped away as Jones seemingly had stripped away. Yes, Jones entered the contract freely, but I don’t think that it crossed her mind that she’d be drugged and raped and had the evidence of such destroyed. I think KBR created these arbitration clauses exclusively for their protection and to strip power from employees like Jones. No, I don’t think that Jones was tricked or coerced into signing, but she didn’t planned on getting raped, either. KBR did have a rape/torture contingency that covered their asses big time and it kept them from being held accountable.
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p>I guess if Jones could have foreseen a scenario where she might be drugged, held captive, and raped, then denied justice by the company she worked for and prevented, via arbitration clauses, from going to US courts and she still signed a contract with KBR, then caveat signator. But I don’t think that was the case and I think she got a raw deal; I say take a small portion of the leverage back from the corporation like KBR and give it back to the employee and the government via the Franken Amendment.
KBR’s agents got hold of the rape kit, and it disappeared, so there is not sufficient evidence for criminal charges.
That’s apart from determining what court would have jurisdiction in a crime that was committed by US contractors in Iraq.
had jurisdiction over criminal acts conducting by US citizens in Iraq.
are-iraq-contractors-subject-to-us-law?
that using mercenaries is simply a bad idea, and we ought to work to reduce our use of mercenaries? After all, had they been US Soldiers, the legal process would have been far different, no?
He does not tiptoe. In passing, he notes that KBR is appealing the latest ruling.