David Guyatt Wrote:Un-fookin-believable!

But then it just goes to show the power of big corps like Haliburton and also reflects the true measure of the political process today.

Quote:Halliburton/KBR used a clause in Jones's contract requiring disputes to be settled by arbitration to block legal action, a policy her lawyer says has encouraged assaults by creating a climate of impunity.

Franken described it as a denial of justice. "Contractors are using fine print to deny women like Jamie Leigh Jones their day in court," he said in a Senate debate. "They can't have mandatory arbitration on issues like assault and battery."

Quote:US defence firms face penalty over block on assault claims

Senate passes measure prompted by case of woman prevented from suing over alleged rape by Halliburton/KBR colleagues

Chris McGreal in Washington

US defence companies are to be barred from lucrative government contracts if they refuse to allow employees access to the courts, after a woman working for Halliburton in Iraq was prevented from taking legal action over an alleged gang rape by fellow employees.

Al Franken, the newest member of the Senate, has won an amendment to next year's defence appropriations bill prompted by the case of Jamie Leigh Jones, who alleges that she was drugged and raped by seven American contractors in Baghdad in 2005.

Jones, who was employed by a Halliburton subsidiary, KBR, which was fighting oil fires, recounts a pattern of subsequent behaviour by the company, including locking her in a container under armed guard and the loss of crucial forensic evidence, that she says amounts to a cover-up.

Halliburton/KBR used a clause in Jones's contract requiring disputes to be settled by arbitration to block legal action, a policy her lawyer says has encouraged assaults by creating a climate of impunity.

Franken described it as a denial of justice. "Contractors are using fine print to deny women like Jamie Leigh Jones their day in court," he said in a Senate debate. "They can't have mandatory arbitration on issues like assault and battery."

In legal papers Jones, who was 20 at the time, says she was fed a knockout drug while drinking with Halliburton/KBR firefighters.

"When she awoke the next morning still affected by the drug, she found her body naked and severely bruised, with lacerations to her vagina and anus, blood running down her leg, her breast implants ruptured and her pectoral muscles torn‚ which would later require reconstructive surgery. Upon walking to the rest room, she passed out again," the papers say.

Jones was treated by a US army doctor who compiled forensic evidence and handed it to company officials. Jones says the firm placed her under guard in a shipping container and she was released only after calling her father in the US, who asked the American embassy to intervene. When the company handed over the forensic evidence to investigators two years later, crucial photographs and notes were missing.

Jones says she identified one of the men who attacked her after he confessed. But she says Halliburton/KBR prevented her from taking legal action against the man or the company by pointing to a clause in her contract requiring disputes to go to arbitration.

She told a Senate committee she was horrified to discover she could not seek redress in the courts. "I had no idea that the clause was part of the contract, what the clause actually meant, or that I would eventually end up in this horrible situation," she said.

Jones's lawyer, Todd Kerry, said that by forcing earlier assault cases to arbitration, Halliburton and other defence companies had created a climate of impunity in which some workers came to believe they could get away with sexual assaults and other crimes.

"I've received upwards of 40 calls to my office [about assault cases] in the past two years. A good number had been disposed of under arbitration," he said. "Had there been public scrutiny to prevent such things happening and these cases taken to court, they might not have been repeated. Instead one of the men who raped Jamie was so confident that nothing would happen that he was lying in bed next to her the morning after."

Halliburton and KBR divided into separate companies in April. Halliburton declined to comment on the case.

KBR has sought to discredit Jones's account by saying she was seen drinking and flirting with a firefighter before leaving the gathering with him, and that the man claims to have had consensual sex with Jones. The company also denies that Jones was held prisoner, saying that it put her in a living container for her own welfare.

KBR does not challenge the doctor's conclusion that Jones's injuries indicated she suffered serious sexual assault. It defends arbitration as a "fair process".

"Most large companies have a dispute resolution programme which is mandatory and is designed to address employee complaints quickly and efficiently. Under KBR's dispute resolution program 95% of all employee complaints are resolved quickly to the employees' satisfaction without a mediation or an arbitration at no cost to the employee," the company said.

Franken and Kerry have both challenged the assertion that arbitration is usually settled to the satisfaction of complainants, and other women have come forward to accuse the companies of not taking assault allegations seriously.

Mary Beth Kineston, who drove lorries in Iraq and survived a bloody ambush, has alleged that she was sacked by the company after complaining of sexual assaults by several fellow workers.

"At least if you got in trouble on a convoy, you could radio the army and they would come and help you out. But when I complained to KBR, they didn't do anything. I still have nightmares. They changed my life forever, and they got away with it," she told the New York Times last year.

Linda Lindsey, who worked for KBR in Iraq for three years, has said male supervisors regularly offered promotions and other benefits in exchange for sex. Lindsey said she filed complaints that were never acted on.

Last month Jones won a court ruling against Halliburton and KBR that the arbitration clause in her contract did not prevent them from being sued. But the legal battle to get the case heard is far from over. "Four years to fight to get in court is not a day in court," she said.

The legislation to end the bar on legal action passed the Senate with a clear majority but 30 Republican members voted against it, including the former presidential candidate John McCain. Among the objections were claims that the government had no business interfering in a private contract between a company and its workers.

Quote:Have You Signed Away Your Right to Sue?

More employees are being forced to sign mandatory-arbitration clauses. But is it legal?
—By Stephanie Mencimer

March/April 2008 Issue
Fonza Luke had worked as a nurse for Baptist Health System's Princeton Medical Center in Birmingham, Alabama, for 26 years when the human resources department summoned her to a meeting about a new "dispute resolution program." Nurses, housekeepers, and lab techs crammed into a conference room where hospital administrators presented a form and told them to sign. Signing meant agreeing to submit any future employment-related complaints to an arbitrator hired by the hospital and waiving the right to sue in court. Refusing to sign meant they'd be fired.

Luke had known the arbitration agreement was coming, and she didn't like the idea one bit—"I just think it's unfair to be made to do something like that," she says. So before going to the conference room, she slipped away to a pay phone and called her lawyer. He said, "Don't sign it. You'll be signing your rights away," she recalls. Luke turned in the form without a signature in quiet protest. A few weeks later, the hospital again ordered her to sign, and again she refused. Despite repeated threats, the hospital didn't fire her, at least not then.

Three years later, Luke traveled to Atlanta for a continuing-education class recommended by her coworkers. When she returned, the hospital fired her for "insubordination" because she had been cleared to take just one day off, not two. For 30 years, Luke had been an exemplary employee. Her personnel file was full of praise for her performance; a review three weeks before the firing called her a "role model." Many of the younger, white nurses Luke worked with had taken unapproved leave, she observed, and kept their jobs. So Luke filed a race and age discrimination complaint with the federal Equal Employment Opportunity Commission (eeoc), which conducted a lengthy investigation, upheld her complaint, and recommended that Luke file a civil rights suit in federal court, which she did in 2003.

That's when the surprise came: Baptist Health argued that Luke had given up her right to sue back in 1997 when the hospital presented the arbitration agreement—even though she'd refused to sign. Simply by continuing to show up for work, Baptist's lawyers said, she'd agreed to the terms. Acting contrary to established contract law, which requires both parties to consent to a contract before it becomes binding, a federal judge accepted the hospital's argument. Luke was forced to take her civil rights case before Baptist's hired arbitrator, who dismissed it in short order. She had no right to appeal. She'd lost not only her job but, because she hadn't yet reached retirement age, part of the pension she'd worked toward for most of her adult life. Now Luke works night shifts at two health care facilities to make up her lost salary.

Mandatory-arbitration provisions like the one forced upon Luke are not rare. In fact, agreements not to sue are becoming a ubiquitous facet of commercial life, governing everything from employment to used-car sales. On job-related matters alone, the National Employment Lawyers Association (nela) estimates that 30 million Americans, or roughly a fifth of the nonunion workforce, have been forced to sign away the right to bring civil claims before a judge or jury. (The practice had a moment in the spotlight recently when a kbr contractor named Jamie Leigh Jones, who said she'd been raped by coworkers in Iraq, had to take her sexual assault and harassment case to an arbitrator hired by her employer rather than a civil jury after the Justice Department failed to prosecute her alleged attackers.)

The root of the arbitration trend is an obscure 1925 law called the Federal Arbitration Act. At the time of its passage, lawmakers stipulated that it only applied to "merchants" involved in contract disputes. But in 1984, the U.S. Supreme Court ruled that Congress had created a "national policy favoring arbitration," thus opening the door to far wider use. The decision prompted a dramatic increase in mandatory binding arbitration, which proponents claimed would help clear overcrowded judicial dockets and cut back on excessive legal expenses.

Since then, judges have used the Supreme Court ruling to legitimize and further expand the use of mandatory arbitration, even though, as Justice Hugo Black once observed, arbitrators can be "wholly unqualified" to oversee complicated cases. Indeed, private arbitrators aren't required to follow the law or established precedent, or even issue written decisions. Many have legal backgrounds, but there is no standard dictating that they be lawyers or credentialed in any way—yet their decisions can't be appealed.

In 1992, the California Supreme Court ruled that an arbitration decision can stand even if it is legally wrong and causes "substantial injustice." In 2006, the U.S. Court of Appeals for the 7th Circuit declared that courts shouldn't review arbitrators' decisions even when they are "wacky." Also in 2006, the 11th Circuit appellate court went so far as to suggest that people who try to challenge arbitration awards in court ought to be sanctioned. Says Cliff Palefsky, a San Francisco employment lawyer and cofounder of nela, "Courts have created the fiction that docket clearing is public policy."

Judges have another reason to love arbitration: The growth of private justice has created for them a new and lucrative job market. U.S. district court judges earn $165,200 a year, less than some second-year law firm associates. Private arbitrators can make $10,000 in a day. Some judges now even seek coaching on how best to tailor their résumés for future arbitration jobs. Lucie Barron, the founder of Action Dispute Resolution Services in California, encourages judges to keep lawyers' business cards for use in marketing their arbitration services to the legal community later on. The trend has become so pronounced that in December, a judge in California reportedly refused to accept a move from civil to criminal court because it would impact his ability to get a job as an arbitrator.

National arbitration companies recruit heavily among sitting judges, many of whom have at one time or another been called upon to rule in a challenge to an arbitration clause. In fact, the California Supreme Court justice who wrote the 1992 opinion allowing unjust arbitration decisions to stand now works as a private arbitrator charging $6,500 a day.

With little hope of progress in the courts, consumer advocates and employment lawyers have turned to Congress. They are banking on a bill introduced last July by Senator Russell Feingold (D-Wis.) that would outlaw mandatory-arbitration clauses in consumer and employment contracts. In December, Fonza Luke flew to Washington to testify before the Senate Judiciary Committee. Having once successfully petitioned the pope to intervene when she thought her daughter had been mistreated in Catholic school, Luke held her own on a witness panel dominated by lawyers and law professors. "I did everything I could to keep my right to go to federal court," she told the committee, "but the courthouse doors were closed when I got there."

Sitting down the table from Luke was Mark de Bernardo, an attorney representing employers who dubbed Feingold's measure a "mandatory-litigation bill." De Bernardo argued that doing away with forced arbitration would lead more people to choose court hearings and "impose a death penalty" on alternative dispute resolution in America. Yet to Feingold and others, that's exactly the point—people should be able to choose. As F. Paul Bland Jr., a staff lawyer with Public Justice in Washington, D.C., put it, "It is a pretty grim idea that the only way you could have arbitration is to force people into it."

Quote:You Can't Sue Us! Some of the companies that use arbitration clauses in contracts with employees or customers

Hooters • Applebee's • kfc • Friendly Ice Cream Corporation • Circuit City • Neiman Marcus • Nordstrom • Hallmark Cards • Merrill Lynch • Citigroup • First usa • Ameriquest • Discover • Blue Cross Blue Shield • Aetna • Kaiser Permanente • AT&T • Ford • Daimler AG • Toyota • Clear Channel • General Electric • Halliburton • Bechtel • Rent-a-Center

Stephanie Mencimer is a staff reporter in Mother Jones' Washington bureau. For more of her stories, click here.