Jamie Leigh Jones was 20 years old in 2005 when KBR—then a subsidiary of Halliburton—sent her to Baghdad's Green Zone as a clerical worker. Her contract with Halliburton/KBR provided that "any and all claims that you might have against Employer related to your employment, including your termination, and any and all personal injury claim[s] arising in the workplace ... must be submitted to binding arbitration instead of to the court system." Mandatory arbitration clauses of this sort are hardly unusual. What's unusual is that KBR is willing to go all the way to the U.S. Supreme Court to keep Jones from having a day in court.
According to Jones, just four days after she arrived in Baghdad, she joined a small group of Halliburton firefighters outside the KBR barracks. One gave her a drink. She took two sips, after which she can recall nothing. In legal filings and congressional testimony, Jones describes waking up the next morning "still affected by the drug," and discovering "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."
According to Jones, a rape kit was administered at an Army-run hospital. The rape kit was then handed over to KBR, and since then bits of it have disappeared as it came into the custody of various agencies until reaching its current resting place with the U.S. Department of State. Jones also alleges that after her rape-kit procedure was performed, KBR placed her under armed guard in a shipping container for at least 24 hours and refused to let her eat, drink, or call her family. For reasons that have never been entirely clear, the Department of Justice declined to investigate. Jones eventually refused to arbitrate this case in a private forum in which Halliburton paid for the arbitrator and in which there was no right to appeal.
She sued in federal court in 2007, and in September, the 5th Circuit Court of Appeals issued a decision allowing Jones to press some of her claims in civil court as opposed to private arbitration. Because her assault was not connected to her employment, the court said, it was not subject to the mandatory arbitration clause she had signed.
Last week KBR/Halliburton asked the U.S. Supreme Court to reverse this ruling. In its petition—which accuses Jones of being dishonest as well as a publicity seeker—KBR gives a whole new meaning to the politics of blaming the victim. As Stephanie Mencimer of Mother Jones pointed out Monday, KBR isn't above accusing Jamie Leigh Jones of being a liar who has "has gone to great lengths to sensationalize her allegations against the KBR Defendants in the media, before the courts, and before Congress."
Evidently KBR is still smarting from Sen. Al Franken's amendment to the Department of Defense Appropriations Act, which withholds defense contracts from companies that "restrict their employees from taking workplace sexual assault, battery and discrimination cases to court." That measure passed the Senate in December, with 30 Republicans voting against it. President Obama signed it into law.
Those same 30 male Republican senators who voted against the Franken amendment learned the hard way that it's never smart politics to try to lock Jamie Leigh Jones in a closet. They were mystified by the blowback last fall. David Vitter of Louisiana, for example, was confronted at a town hall meeting by a devastated rape victim. (Vitter blamed President Obama and walked away). John Thune of South Dakota tried to say the Franken amendment was a "politically inspired amendment" that aimed to do away with arbitration in labor agreements. Then John Cornyn of Texas whined about how the evil Franken was "trying to tap into the natural sympathy that we have for this victim of this rape—and use that as a justification to frankly misrepresent and embarrass his colleagues." It takes a special kind of narcissist to say a victim of gang rape isn't suffering as much as the embarrassed senators who voted against her.
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.