Franken Amendment not about rape – it’s about another giveaway to lawyers
Posted by Clyde Middleton
on Oct 21 2009 Filed under Politics.
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Sometimes the dems know no bottom to the cesspool within which they live. Franken offers an amendment to the Defense appropriations bill. It stems from the awful case of Jamie Leigh Jones who was allegedly sexually abused while working for contractor Halliburton/KBR in Iraq.
Seems simple enough – nasty situation, let’s make sure we address it. There was a perceived (but not actual – see below) waiver of rights due to a mandatory arbitration clause in the employment contract. So what does the Franken Amendment do? It bars the Defense Department from contracting with any company that requires arbitration to settle disputes with employees.
Hunh? Can’t they address directly the issues of gross sexual misconduct and criminal sexual misconduct without benefiting third parties in the process? Is EVERYTHING they do have to be a pay-off to some interest group? Do they have ANY clue the history behind arbitration clauses and the good they do? Do they have to address a finite problem with a broad brush?
The Heritage Foundation’s James Sherk points out that despite Halliburton/KBR’s requirement, Jones hasn’t been prevented from seeking justice in the courts:
Given that Franken chose to highlight her case, you might assume that the courts ruled in Haliburton’s favor, and that she was not able to bring her claims in court instead of to an arbitrator. But then you would be wrong. The courts ruled that Halliburton could not arbitrate her claims of assault and battery, intentional infliction of emotional distress, negligent hiring, retention and supervision of employees involved in the assault, and false imprisonment.
What few know (and the libs certainly doesn’t want anyone to know) is the DoD opposed the amendment. This is from the message sent from DoD to the Senate:
DoD Position
Proposed Franken Amendment (# 2588) re: H.R. 3326 Prohibition against requiring 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.
• The DoD opposes the proposed amendment.
• The proposed amendment effectively would require debarment of any contractor or subcontractor or would require termination of any contract if the contractor or a subcontractor, at any tier, compels an employee or independent contractor, as a condition of employment, to agree to the use of arbitration to resolve sexual harassment claims of all sorts. The Department of Defense, the prime contractor, and higher tier subcontractors may not be in a position to know about such things. Enforcement would be problematic, especially in cases where privity of contract does not exist between parties within the supply chain that supports a contract.
• It may be more effective to seek a statutory prohibition of all such arrangements in any business transaction entered into within the jurisdiction of the United States, if these arrangements are deemed to pose an unacceptable method of recourse
And for the Franken Amendment the libs tell us that the pubs are for rape (here and here and here and here and here and here)?!? How sadly contrived. The only party that will benefit from the Franken Amendment are trial lawyers. And the trials will be way beyond matters similar to that of Jamie Leigh Jones – every perceived wrong a trial lawyer can find will become a basis for a lawsuit.
This is a prime example of why the dems suck at leading. You got a problem, you fix the problem. Stop the wide nets.
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Short URL: http://libertypundits.net/?p=7871
Can someone please explain to me what’s bad about suing someone if they’ve raped you?
Or, alternatively, would you pledge now that if a close female relative were raped, you give up your right to sue?
Dear Simple Question.
1. She was NOT blocked from suing anyone
2. The Franken Amendment does not remedy her situation because it needed no remedy – she could sue away. It is an age-old foundation of law that certain rights cannot be signed away in a contract.
3. The proposed fix covers ever single use of arbitration clauses in every single DoD contract applying to every single situation.
So your question, all due respect, is off point to both her situation and this article. Further, I have had my life touched more than once by rape, so please do not assign of lack of caring on the issue.
Clyde,
1. She WAS blocked from suing by KBR insisting on enforcing the arbitration clause, and even kept from reporting the crime. She has sued for the right to take her grievance to court, and has just (years later) won that right. KBR is appealing that decision, I believe.
2. KBR, by unjustly (and quite possibly illegally) trying to enforce arbitration where it really shouldn’t be used, has shot itself in the foot, and quite possibly damaged the usefulness of arbitration. Arbitration can be a fast, accessible way of addressing grievances, but the secrecy provisions allow for abuse, as does mandatory enforcement. It is clear KBR has abused the process. The remedy is to keep arbitration as an available option for dispute resolution, but drop the secrecy provisions, and also keep it out of the employment contract. It is just too open to abuse, as KBR has amply demonstrated.
It is not Franken who has stuffed up – it is KBR.
3. Your point is not correct – the amendment applies to specific instances of civil rights only. A rider that arbitration cannot be enforced in certain situations is not too onerous.
If you are so sure that trial lawyers are the main beneficiaries here, then that demonstrates that there is insufficient regulation in your country, and that your standards are so ill-defined that everything needs to be tackled either in court or in secret arbitration.
She didn’t “win the right.” She had it all along. The argument by her employer was that she did not have the right, that she waived it in her employment contract – and the court’s said KBR was wrong.
Criminal law trumps contract law every time in America. No contract can prevent someone from a reporting a crime – it is repugnant to public policy, which vitiates the contract or that portion of it.
Concerning the text of the amendment, here it is in full: Sec. 8104. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new
Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration 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.
(b) The prohibition in subsection (a) does not apply with respect to employment contracts that may not be enforced in a court of the United States.
1. “any claim under title VII of the Civil Rights Act of 1964″ is rather broad, and will be exploited. This remedy is not needed for this case.
2. Do you see anything in there that says she cannot report a crime? Of course not – because she always could.
3. What you do see in there is a list of torts well beyond anything this case dealt with.
The Franken remedy is out of bounds. Opposition has nothing to do with “supporting rape” as the clowns allege. Opposition is grounded in finding a problem and crafting an appropriate solution. This solution is not it.
So, we should continue to business with a company that behaves like KBR, then? What you are saying is “don’t terminate their contract” even if they employ and condone rapists?
If the amendment was as focused as your comment, then I’d have no issue with it. Unfortunately, the amendment was too broad. It did not provide a remedy focused on the perceived problem.