Mandatory Arbitration a Violation Too
January 5th, 2008 | Paula Brantner
Jamie Leigh Jones’ legal fight against her former employer, KBR, a former Halliburton subsidiary, has attracted a great deal of attention, for the grave nature of her allegations against her employer. Jones says that she was gang-raped by her Halliburton/KBR coworkers in Baghdad, and then, when she reported the crime, she was placed under guard in a shipping container and threatened if she were to leave Iraq. What most people do not realize is that if Halliburton has its way, Jones will also be violated by the legal system’s inability to fully protect her. Halliburton claims that Jones’ employment is subject to an arbitration agreement which would prevent her from having her claims heard in a court of law.
Ms. Jones was only 20 years old when she went to Baghdad as an employee of Kellogg, Brown, Root. Her husband, Joseph Daigle, was in the military, and stationed at Coronado Island in California. She began work at age 19 as an administrative assistant in KBR’s offices in Houston, and claims that she was coerced into a sexual relationship with her supervisor, Eric Iler. She transferred to get away from Iler, and was assigned to a camp in Iraq. (Jones vs. Halliburton Second Amended Complaint).
When Ms. Jones arrived in Iraq in July 2005, she was housed in co-ed living quarters that were predominantly male. To use the restroom, she had to walk down a hallway to another floor, which meant that she was subjected to catcalls and scantily-clad men each time she left her room. Two days after she arrived in Iraq, fearful about her safety, she complained about her living quarters. She was told to “go to the spa,” and nothing was done to change her housing situation. (Jones vs. Halliburton Second Amended Complaint).
One day after she complained, she claims that she was drugged, using the drug Rohyphnol, and raped by multiple employees of Halliburton/KBR. When she awoke, she was naked and battered, with blood running down her leg, and showed other signs of sexual assault. She passed out when attempting to go to the bathroom, and when she returned to her living area, she found a coworker in her bed. She reported the rape to her superiors, and a rape kit was administered at a nearby Army hospital. (Jones vs. Halliburton Second Amended Complaint).
As if what had already happened was not horrific enough, once she reported the crime, the horrors continued. She was confined in a shipping container with a bed, with an armed guard, and was denied food and water for 24 hours. She was warned that if she left Iraq for medical treatment, she’d be out of a job. Jones said that her employers told her, “Don’t plan on working back in Iraq. There won’t be a position here, and there won’t be a position in Houston.” (See ABC News article.) She finally convinced a sympathetic guard to let her call her father, who once he learned about her plight, enlisted the help of a member of Congress, Rep. Ted Poe (R-Texas). Rep. Poe was successful in contacting the State Department, who sent two representatives from the U.S. Embassy in Baghdad to bring Ms. Jones home from Iraq. (See Rep. Poe’s Statement to Subcommittee on Crime, Terrorism and Homeland Security.)
It’s been over two years since Ms. Jones’ trip to Iraq, and little has happened as she attempts to seek justice for what happened. Rep. Poe assisted Ms. Jones in attempting to have criminal charges brought against her assailants. She was interviewed by an Assistant U.S. Attorney, and a State Department Special Agent is supposed to be investigating her case, yet neither Ms. Jones nor Rep. Poe have been informed about the status of the criminal investigation. (See Rep. Poe’s Statement to Subcommittee on Crime, Terrorism and Homeland Security.)
What about a lawsuit, you ask. Surely such heinous allegations can be heard in the courts. Unfortunately, that’s not certain either. Ms. Jones and her husband have filed a lawsuit which is currently before a federal district court in the Eastern District of Texas. (See Jones vs. Halliburton Second Amended Complaint). However, in addition to denying Ms. Jones’ allegations (which almost always happens when a case isn’t settled immediately), Halliburton/KBR claim that Ms. Jones’ case should not even be in court. They argue that Ms. Jones signed an agreement when she went to work for KBR which requires her to seek justice in the private system of arbitration, instead of court.
Arbitration is a process for resolving disputes outside of the public court system. It usually involves the submission of claims which might otherwise have been brought to the public court system for resolution by a private arbitrator. The arbitrator is paid by one or both of the parties involved in the dispute. Discovery (the ability to obtain relevant information from the other side) is generally limited. Although some arbitrators are expert in their fields, arbitrators are not required to be judges or attorneys, and are not required to know and/or follow the law that is the subject of the dispute. (See Workplace Fairness arbitration page.)
At first blush, arbitration may not sound so bad. Its use is promoted by claiming that it’s faster and cheaper than litigation, and involves fewer procedural hassles than court. And when its use is voluntary, it may be an acceptable way to resolve a dispute. (See WF arbitration page.) But Jamie Leigh Jones did not voluntarily agree to resolve her dispute through arbitration. She agreed to accept a job with KBR. Even if she recalled signing the form requiring arbitration when she was hired, although with the other reams of paper most employees are required to sign when they are hired these days, it’s doubtful that she realized she would be forfeiting her rights if something happened on the job. And it’s even more doubtful that she, as a 19-year-old accepting a position as an administrative assistant, had equal bargaining power to her employer. She needed a job, and if she refused to sign the form, she in all likelihood would not have been given that job.
There is currently a bill before Congress, the Arbitration Fairness Act of 2007, which would prevent employers from requiring their employees to arbitrate cases. As the bill acknowledges,
Most consumers and employees have little or no meaningful option whether to submit their claims to arbitration. Few people realize, or understand the importance of the deliberately fine print that strips them of rights; and because entire industries are adopting these clauses, people increasingly have no choice but to accept them. They must often give up their rights as a condition of having a job, getting necessary medical care, buying a car, opening a bank account, getting a credit card, and the like. Often times, they are not even aware that they have given up their rights.
(See S. 1782, Sec. 2) On December 12, the bill was heard before a subcommittee of the Senate Judiciary Committee. (See Hearing Transcript here.) Thanks to a live blog of the hearing, you can read for yourself just how flimsy are the arguments that supporters of mandatory arbitration made in favor of preserving the current system. Shortly after the hearing on the arbitration bill, Ms. Jones also appeared at a hearing before Congress, and was able to share her story with the world — something she couldn’t do in the private, hidden system of arbitration.
Civilian employees in Iraq already fear for their lives and personal safety on a daily basis, but they shouldn’t have to fear sexual assault from their coworkers. But unless there is the specter of the law to regulate their behavior, Jones’ attackers might as well have been given a “Get out of jail free” card. We may never know all that happened in Iraq that day in 2005, but surely Jamie Leigh Jones should have the right to seek the truth. And if the truth is what she says it is, there should be something she can do about it.
Nothing can give her back what appears to have been taken from her on that day, but rather than giving her attackers a pass, we should be working toward a system that has some deterrent value. As long as employers can impose mandatory arbitration on employees, they risk being violated by the very system that is supposed to protect them. Jamie Leigh Jones was already repeatedly violated — we shouldn’t allow it to happen yet again.
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