KBR Trashes Jamie Leigh Jones

You may remember the story of Jamie Leigh Jones, a KBR employee who alleges she was drugged and raped by colleagues of hers while working in Iraq, then locked in a shipping container with no food, water, or outside contact for 24 hours when she reported the crime. KBR then tried to prevent Ms. Jones from getting her day in court by asserting that her allegation was "employment-related" and thus fell under a mandatory arbitration agreement (y'all know my thoughts on those in general). The story sparked the passage of a law written by Al Franken which would prevent such arbitration clauses from being enforced by defense contractors in cases concerning rape, sexual assault, or discrimination (Republicans were stunned when their opposition to the law turned into a political disaster).

But KBR is still fighting. Pilloried in the press, stung by hostile legislation, and losing its case before the 5th Circuit, KBR has petitioned the Supreme Court to grant cert in its case in a last ditch effort to keep Ms. Jones out of court. And its primary strategy is to try and trash the reputation of Ms. Jones:

But having lost at the trial court, again at the appeals court and then in the Senate as the Franken amendment was signed into law, KBR/Halliburton, in its petition to the Supreme Court last week, wasted no time at all in trashing her. While advancing its legal theory that Jones's claim is unquestionably "related to" her employment, it also promises, in a footnote, that "The KBR Defendants intend to vigorously contest Jones's allegations and show that her claims against the KBR Defendants are factually and legally untenable." Er, where do they plan to show all that? In the secret underground arbitration lair of KBR?

In addition to going after her truthfulness in its court pleadings, KBR has mounted a zealous public campaign to "correct the facts" about the Jones litigation—urging, for instance, that "Ms. Jones' allegation of rape remains unsubstantiated" and that she wasn't locked in a shipping container but rather "provided with a secure living trailer." Apparently KBR fails to appreciate the irony of demanding that all of its counter-facts come to light despite its love for secret arbitration.

KBR is now claiming that Ms. Jones has "sensationalize[d] her allegations against the KBR Defendants in the media, before the courts, and before Congress," apparently to experience the joy of being known in public as the victim of rape.

As Senator Franken noted when asked:

"You know where a great place to try arguments is? In court. But they've spent five years fighting against her attempts to have her day there. It seems odd that they wouldn't want to explain their side in the courtroom, since they're willing to in the media."

In any event, one suspects that this will not end well for KBR. Ms. Jones has proven herself to be tough, resilient, and unwilling to back down regardless of the pressure put on her. I fully expect her to beat back this last challenge -- and then cream KBR for their egregious abuses with the full force of the law.

Civil Rights Roundup: 09/03/08

Your daily dose of civil rights and related news

Backlash over the Postville raid may be prompting the government to change its immigration enforcement tactics somewhat.

Orange County Register: The diversity given by immigration is a source of strength, not weakness, to our nation.

Same-sex marriage: good for the economy. How long until "pro-family" groups start up their victim complex by railing against "Big Marriage"?

Also on the marriage front, a New York court has thrown out a suit challenging Gov. David Patterson's (D) decision to recognize out of state gay marriages.

Police are charging several men with civil rights violations after shouting homophobic slurs and assaulting four men outside of a night club.

The Boston Globe reviews Mark A. Noll's new book, God and Race in American Politics: A Short History. Noll is an evangelical Christian who documents the way in which religion and race have always been intertwined on both sides of America's race question -- from slavery to civil rights. Also interesting: I didn't know that Harriet Beecher Stove became a White supremacist after the Civil War.

Obama is up with radio ads attacking John McCain on abortion. That's rare from a Democratic candidate, but the fact that Roe is genuinely imperiled this election makes it wise move, in my view (and others as well).

A New York area supermarket chain was found to have cheated some of its managers out of overtime pay. Basically, the company tried to claim they were salaried employees to avoid giving overtime, but then would treat them as hourly to dock them pay if they missed part of the day.

Third Circuit: Spanish-speaking workers bound by arbitration ruling written in English. The trial court had held the agreement unenforceable because the workers had no way of knowing that it had an arbitration clause at all.

New Jersey schools still asking enrolling students about immigration status, despite it being a violation of state and federal(?) law.

Conservatives and Black people? Together under one roof? What a weird place New York is! Rich Lowry brings the funny.

If Arbitration is so Great, People Will Choose it Willingly

Two days ago the Wall Street Journal published an editorial opposing the Arbitration Fairness Act (AFA). The article, written by former FTC commissioner Christine Varney, alleges that the AFA would eliminate arbitration as an option for employees and customers in disputes with corporations.

It is, to put it mildly, a bizarre argument. Most of the article spends its time talking up the virtues of arbitration as a superior alternative to litigation for all parties. And undoubtedly, sometimes it is. But the AFA would do nothing to stymie arbitration as an option for dispute resolution. All it prohibits is mandatory, pre-dispute arbitration: that is, contracts which require any future disputes – regardless of what they may be – to be submitted to arbitration, regardless of whether it is the best option for both parties. Right now, those sorts of clauses are placed deep in the fine print of standard employment or consumer contracts: situations in which individuals have virtually no ability to bargain or refuse them (did you even think to check if your car purchase contained a mandatory arbitration clause? If it had one, would you have refused to buy the car?). Under no reasonable interpretation can that be considered an "agreement" by the company and the employee or consumer. The AFA would bar these pre-dispute clauses, but once a dispute has started, both parties can still agree to submit it arbitration if they view it as the best possible forum.

Ms. Varney's only argument as to why the AFA threatens arbitration is the “inconvenient reality” that “it is very difficult to get two sides of a dispute to agree to much of anything once a dispute has started.” But this is contradicted by nearly every paragraph in her own article. If arbitration truly offers the many benefits for individuals in terms of efficiency and reduced cost that she claims it does, it should not be difficult to secure an arbitration agreement even after a dispute has been filed.

The true inconvenient reality, however, is that in many cases arbitration is neither cheapest nor fairest route to resolve disputes. Arbitration prevents the development of class action lawsuits, which are important tools when companies engage in small illegal practices affecting large numbers of people. They also can deter individuals with small claims who have to pay all expenses up front, with no guarantee that they'll receive any settlement at all. Yet mandatory pre-dispute arbitration clauses, agreed to by consumers and employees with little say in the matter, force any case to go arbitration no matter what the individual circumstances are.

The whole reason arbitration was created as an alternative to the court system was Congress' recognition that different types of proceedings work best for different types of cases. But it is impossible to predict which cases belong in arbitration and which belong in the courts in advance.

The Arbitration Fairness Act restores the original purpose of arbitration: to arbitrate when it makes sense to arbitrate, and go to court when it makes sense to go to court. If Ms. Varney is convinced that arbitration is the superior route most of the time, she should have confidence that consumers and employees will select it most of the time. But giving employees and consumers a true choice will help insure that the right forum is available for each and every case.