The 5th Circuit, splitting 2-1, examined KBR's claim that Jones' rape was "related to" her employment and conceded that other courts have been split on the issue. The panel concluded, however, that the scope of the arbitration provision at issue "certainly stops at Jones' bedroom door." It also ruled that if Halliburton/KBR had considered her gang rape a "distinct risk" of her employment, the company "would have immediately heeded Jones' request to be placed in a private sleeping facility, instead of a barracks where the ratio of men to women was 20 to one." The panel agreed with the district court that for purposes of this litigation, "Plaintiff's bedroom should [not] be considered the workplace, even though her housing was provided by her employer."
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.
I asked Franken what he thought of KBR's latest efforts to trash Jones in public for her refusal to be trashed by them in private. Here's what he had to say: "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."
You'd think Vitter and his buddies would have learned their lesson after their public thumping last fall, even if they didn't quite understand how wrong they were about the Lilly Ledbetter case: When the White House and 42 Senate Republicans tried to block equal pay legislation in the wake of a crabbed Supreme Court decision, they blamed uppity women and greedy trial lawyers for pay discrimination against women. Blaming the victim isn't a smart strategy, then or now. That's why all four GOP women (Susan Collins and Olympia Snowe of Maine, Kay Bailey Hutchison of Texas, and Lisa Murkowski of Alaska) voted in favor of the Franken amendment. (Five GOP men did as well.)
You can holler about trial lawyers all you want, but nobody wants to be told their legal disputes ought to be worked out in secret, off the books, and in dark rooms, just so the justice system can be preserved for other people. And nobody wants to be called out publicly as a liar before they have found a safe place to try to tell their truth. The Supreme Court may have given corporate personhood a great big shot in the arm this past week , but KBR is making a huge mistake if it assumes that actual personhood—as in Jamie Leigh Jones—doesn't count for anything.
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