MBA5600- Comparative Case Studies in Business Law and Ethics.

The Assault of Jamie Leigh Jones:
How One Woman’s Horror Story Is
Changing Arbitration in America
Jeffrey Adams*
I. INTRODUCTION
On July 28, 2005, Jamie Leigh Jones (Jones) woke up in her barracks
naked and severely bruised.1
Blood was running down her leg,2
her breasts
were badly mauled,3
and the date-rape drug she had unsuspectingly ingested
the night before left her feeling groggy and confused.4
Unfortunately,
Jones’s horrifying situation was only beginning. Surprisingly, what was
about to happen to Jones would not only affect her. Her unsettling
experience would also stoke a national debate in America and lead to an
amendment to the United States’ national defense budget created practically
in her honor.5
Moreover, Jones was about to be viewed by many U.S.
lawmakers as a victim of a brutal gang rape and as a victim of an arbitration
* Jeff Adams is a J.D. Candidate at Pepperdine University School of Law. He is expected to
graduate on May 20, 2011. I would like to thank the DRLJ Staff for their assistance in preparing this
article, Natalie McCullough for encouraging me to say the most I can with the fewest words, and
Professor Selina Farrell for what she taught me in Legal Research & Writing.
1. See, e.g., Chris McGreal, Rape Case to Force US Defence Firms into the Open, THE
GUARDIAN, Oct. 15, 2009, available at https://www.guardian.co.uk/world/2009/oct/15/defencecontractors-rape-claim-block.
2. Id.
3. See, e.g., Wade Goodwyn, Rape Case Highlights Arbitration Debate, NAT’L PUB. RADIO,
June 9, 2009, https://www.npr.org/templates/story/story.php?storyId=105153315. “Her breasts were
so badly mauled that she is permanently disfigured.” Id. As a result of the assault and rape her
breast implants ruptured, her pectoral muscles were torn, and she would later need reconstructive
surgery to repair the damage. See McGreal, supra note 1.
4. See, e.g., John R. Parkinson, Naked, Sore, Bruised and Bleeding: Alleged U.S. Contractor
Rape Victim Fights for Day in Court, ABC NEWS, Oct. 7, 2009,
http://abcnews.go.com/Blotter/halliburton-employee-jamie-leigh-jones-testifies-senaterape/story?id=8775641&page=1.
5. See, e.g., Jennifer A. Dlouhy, KBR Rape Case to Influence Rules for Contractors,
HOUSTON CHRONICLE, Dec. 16, 2009, available at
https://www.chron.com/disp/story.mpl/nation/6773870.html.
(09) FORMAT 2 ADAMS.DOCX (DO NOT DELETE) 4/5/2011 1:48 PM
254
culture in the U.S. legal system that denied her both justice and her rightful
day in court.6
This article examines Jones v. Halliburton Co.,
7
the “Al Franken
Amendment” to the 2010 U.S. Defense Department Budget (Franken
Amendment) that was created in response to Jones,
8
and the impact that both
could have on mandatory arbitration clauses in employment contracts in the
future. Part II recounts the troubling events that led to Jones and the
inclusion of the Franken Amendment in the 2010 Defense Department
Budget. Part III details the arguments made for and against the inclusion of
the Franken Amendment. Part IV analyzes the impact that the Franken
Amendment could have on mandatory arbitration clauses in contacts in the
future. Part V concludes this article.
II. BACKGROUND
A. Jamie Leigh Jones
On July 21, 2005, Jones signed an employment contract with Overseas
Administrative Services (OAS), a foreign, wholly-owned subsidiary of
Halliburton/Kellogg, Brown & Root (Halliburton/KBR).9
Jones was hired
by OAS for employment as a clerical worker in Baghdad, Iraq.10 The
relevant portion of Jones’ contract stated:
You . . . agree that you will be bound by and accept as a condition of your employment
the terms of the Halliburton Dispute Resolution Program which are herein incorporated
by reference. You understand that the Dispute Resolution Program requires, as its last
step, 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, you have against other parent or affiliate of Employer, must be
submitted to binding arbitration instead of to the court system.
11
6. See, e.g., Parkinson, supra note 4. Senator Patrick Leahy (D-Vermont) stated at the Senate
Judiciary Committee hearing about Jones, “There are no juries or independent judges in the
arbitrations industry. There is no appellate review. There is no transparency. And . . . [for] Jamie
Leigh Jones there is no justice.” Id. Senator Al Franken (D-Minnesota) argued, “Contractors are
using fine print to deny women like Jamie Leigh Jones their day in court.” McGreal, supra note 1.
7. Jones v. Halliburton Co., 583 F.3d 228 (5th Cir. 2009).
8. H.R. 3326, 111th Cong. § 8116 (2009).
9. See Jones, 583 F.3d at 231. Jones had already been employed by Halliburton/KBR since
2004 as an administrative assistant in Houston, Texas. See id. at 230. Jones alleged that while she
was employed at Halliburton/KBR in Houston she was sexually harassed by her supervisor, and as a
result demanded that she be relocated to another department. See id. at 230-31.
10. See id. at 231.
11. Id. (emphasis added).
(09) FORMAT 2 ADAMS.DOCX (DO NOT DELETE) 4/5/2011 1:48 PM
[Vol. 11: 253, 2011] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL
255
1. Jones in Iraq
Jones arrived in Baghdad on July 25, 2005.12 Halliburton/KBR
provided housing for Jones as determined in her employment contract.13
Jones asked for, and claimed that she was guaranteed, “a private billeting
area to be shared only with women.”14 Instead, she was housed in barracks
predominantly occupied by male employees.15
Jones alleged that she was immediately subjected to unwelcome sexual
harassment in her barracks.16 On July 27, after just two nights in her
barracks, Jones asked Halliburton/KBR managers to move her to a safer
housing location because of the “sexually hostile” environment that
pervaded her current housing situation.17 Despite her requests,
Halliburton/KBR managers would not relocate Jones.18 Then, late the next
day, just three days after her arrival in Iraq, Jones was allegedly “drugged,
beaten, and gang-raped by multiple Halliburton/KBR employees in her
barracks bedroom” following a social gathering near her barracks.19
The incorporated [Dispute Resolution Program] . . . provide[d]:
‘Dispute’ means all legal and equitable claims, demands, and controversies, of
whatever nature or kind, whether in contract, tort, under statute, or regulation, or
some other law, between persons bound by the Plan or by an agreement to resolve
Disputes under the plan . . . including, but not limited to, any matters with respect to
. . . any personal injury allegedly incurred in or about a Company workplace.
Id.
12. Id. Jones’s assignment in Baghdad was located in the United States Army’s Central
Command Area of Operations, an area within the “Green Zone.” Id. This area was initially the
center of the Coalition Provisional Authority after America’s invasion in Iraq. Id. Jones was
stationed at Camp Hope, which Jones alleged “was under the direct control and authority,
collectively, of the United States Departments of State and Defense, and Halliburton/KBR.” Id.
13. Id.
14. Id.
15. Id. The barracks were also “some distance from her workplace.” Id.
16. See id.
17. Id.
18. Id. Jones alleged that Halliburton/KBR did not take any steps to move her to a different
location; rather “she was, instead, allegedly advised to ‘go to the spa.’” Id.
19. Id. The last thing Jones remembers about the night of her alleged rape was taking two sips
of a drink given to her by a co-worker. See Goodwyn, supra note 3. Jones was raped vaginally and
anally. See, e.g., Brian Ross, Maddy Sauer & Justin Rood, Victim: Gang-Rape Cover-Up by U.S.,
Halliburton/KBR, ABC NEWS, Dec. 10, 2007,
http://abcnews.go.com/blotter/story?id=3977702&page=2. Though Jones was raped repeatedly, she
does not know for certain how many men actually raped her. See Goodwyn, supra note 3. Some
sources, however, have reported that as many as seven male employees were involved in Jones’s
(09) FORMAT 2 ADAMS.DOCX (DO NOT DELETE) 4/5/2011 1:48 PM
256
Jones reported the rape to Halliburton/KBR medical personnel the next
morning.20 She was administered a rape-kit and given an examination at a
U.S. Army-operated hospital.21 What purportedly followed this examination
was a series of terrifying events for Jones. Jones was placed under armedguard by Halliburton/KBR employees, locked in a shipping container, and
not permitted to leave.22 Jones was also “interrogated by [Halliburton/KBR] management and human resource personnel for hours and was told that if
she chose to return to the United States, she would not have the guarantee of
a job upon [her] return.”23 In addition, Halliburton/KBR refused to allow
Jones to contact her family until she convinced a compassionate guard to
allow her to telephone her father.24 Jones’s father called his U.S.
Congressman, Representative Ted Poe (R-Texas). Representative Poe called
the U.S. State Department, and the State Department dispatched agents from
the U.S Embassy in Baghdad to rescue Jones and ensure her safe return to
the United States.25
2. Jones at Trial
Upon her return to the United States, Jones brought an action against
Halliburton/KBR.26 The U.S. Department of Justice declined to investigate
alleged gang-rape. See Parkinson, supra note 4. Jones’s numerous physical injuries included torn
pectoral muscles that would later require reconstructive surgery to repair. See Jones, 583 F.3d at
232. She also had lacerations to her vagina and anus. McGreal, supra note 1.
20. See, e.g., Jones, 583 F.3d at 231. When she woke up, Jones found one of her alleged
perpetrators lying in the lower bunk of her bedroom. See id. at 231. “At that time he allegedly
admitted to having unprotected sex with her.” Id. at 231-32. According to Jones, “he knew he was
beyond the reach of any jurisdiction, so he was still brazen enough to be there.” Goodwyn, supra
note 3. Given the U.S. Department of Justice’s inaction in Jones’s case, Jones’s point is a strong
one. See infra note 27 and accompanying text.
21. See, e.g., Jones, 583 F.3d at 232. Jones alleged that Halliburton/KBR mishandled the rape
kit after it was administered to her. Id. For example, when the forensic evidence of her rape from
her examination was given to investigators two years later, “crucial photographs and notes were
missing.” McGreal, supra note 1.
22. See, e.g., Jones, 583 F.3d at 232. Jones described the container as “sparely furnished with
a bed, table and lamp.” See Ross supra note 19. Jones was left in the container for at least twentyfour hours without food or water. Id.
23. Jones v. Halliburton Co., 625 F. Supp. 2d 339, 343 (S.D. Tex. 2008). Jones alleged that
her KBR supervisors “gave her two options: to stay and ‘get over it;’ or to return home without the
‘guarantee’ of a job on return.” Jones, 583 F.3d at 232.
24. See, e.g., Jones, 583 F.3d at 232.
25. See Ross, supra note 19. Representative Poe said in an interview, “‘We contacted the
State Department first, and told them of the urgency of rescuing an American citizen’—from her
American employer.” Id.
26. See Jones, 583 F.3d at 232. Jones first filed a complaint with the Equal Employment
Opportunity Commission, who determined that Jones had been “sexually assaulted by one or more
(09) FORMAT 2 ADAMS.DOCX (DO NOT DELETE) 4/5/2011 1:48 PM
[Vol. 11: 253, 2011] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL
257
Jones’ claims; therefore, she was limited to a civil action against her former
employer.27 The problematic issue facing Jones, however, was that before
leaving for Iraq she had signed the contract that provided that all claims
against Halliburton/KBR would be settled through arbitration and not
through litigation in the court system.28 Consequently, when Jones filed an
action against Halliburton/KBR in the Southern District of Texas in May
2007,29 Halliburton/KBR “moved to compel arbitration of Jones’s claims
and stay the proceedings.”30
The district court concluded that a valid agreement to arbitrate existed
between Jones and Halliburton/KBR.31 But, the court also found that the
employees; physical trauma was apparent; and Halliburton/KBR’s investigation had been
inadequate.” Id. Then, in February 2006, Jones filed a demand for arbitration against
Halliburton/KBR, but upon retaining new counsel, filed the action in district court. See id.
27. See Ross supra note 19. “Legal experts say Jones’ alleged assailants will likely never face
a judge and jury, due to an enormous loophole that has effectively left contractors in Iraq beyond the
reach of United States law.” Id. Dean John Hutson of the Franklin Pierce Law Center said, “It’s
very troubling, the way the law presently stands, I would say that [Jones and those like her] don’t
have, at least in the criminal justice system, the opportunity for justice.” Id.
28. Jones, 583 F.3d at 231-33. See also supra note 11 and accompanying text. However,
Jones testified before a Senate committee, “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.”
McGreal, supra note 1. Jones has also stated, “I didn’t even know that I had signed such a clause,
but even if I had known, I would never have guessed that it would prevent me from bringing my
claims to court after being brutally sexually harassed and assaulted.” Parkinson, supra note 4.
Notably, Jones’s employment contract with Halliburton/KBR was eighteen pages long. See Dlouhy,
supra note 5.
29. Jones, 583 F.3d at 232. This complaint, Jones’s Fourth Amended Complaint, asserted
claims for: “negligence . . . negligent undertaking; sexual harassment and hostile work environment
under Title VII; retaliation; breach of contract; fraud in the inducement to agree to arbitration;
assault and battery; intentional infliction of emotional distress; and false imprisonment.” Id.
Moreover, “[Jones] contended Halliburton/KBR was vicariously liable for the torts committed by its
employees.” Id.
30. Id. at 233. Halliburton and KBR separated into two companies in April 2007, and
Halliburton has declined to comment on the case. McGreal, supra note 1. KBR, however, has
defended its arbitration procedures as a “fair process” by arguing: “Most large companies have a
dispute resolution [program] 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.” Id. The
company has thus denied liability in the suit. Id. KBR has also sought to discredit Jones by arguing
that she was seen flirting with co-workers, drinking, and leaving the party with a co-worker. Id.
According to KBR, that co-worker claims to have had consensual sex with her. Id. Furthermore,
KBR “denies that Jones was held prisoner, but not that her injuries indicated serious sexual assault.”
Id.
31. See Jones v. Halliburton Co., 625 F. Supp. 2d 339, 356-57 (S.D. Tex. 2008); see also
Jones, 583 F.3d at 233. In holding that a valid agreement to arbitrate existed, the district court
(09) FORMAT 2 ADAMS.DOCX (DO NOT DELETE) 4/5/2011 1:48 PM
258
arbitration provision in the contract was “very broad.”32 Because of the
broadness of the provision, the court ruled that the four claims related to
Jones’s alleged rape (assault and battery; intentional infliction of emotional
distress; negligent hiring, retention, and supervision of the employees
involved; and false imprisonment) fell “beyond the outer limits of even a
broad arbitration provision” and were “not related to Ms. Jones’s
employment.”33 Consequently, the district court compelled arbitration for
all of Jones’s claims except for the four claims related to her alleged rape.34
The Fifth Circuit Court of Appeals affirmed and remanded the case in
September 2009.35 In December 2009, a federal judge set a date for Jones’s
trial on the four issues surrounding her rape claim for February 7, 2011.36
B. The “Al Franken” Amendment
Prompted by Jones, in 2009 the U.S. Congress looked to pass a measure
that would prevent private defense contractors from compelling their
employees to use arbitration to resolve cases of sexual assault.37 Congress
wanted to pass this measure even though the Fifth Circuit Court of Appeals
had already ruled in favor of Jones by allowing her rape-related claims
against Halliburton/KBR to go to trial.38 Accordingly, then newly-elected
Minnesota senator,39 Al Franken, introduced an amendment to the 2010
rejected Jones’s claims that “there was no meeting of the minds; the arbitration clause was
fraudulently induced; the provision was contrary to public policy; and enforcing the agreement
would be unconscionable.” Jones, 583 F.3d at 233. The district court also rejected Jones’s claim
that the arbitration agreement should not be enforced based on the equitable doctrine of unclean
hands. Id.
32. Jones, 625 F. Supp. 2d at 352; see also Jones, 583 F.3d at 233.
33. Jones, 625 F. Supp 2d at 252; see also Jones, 583 F.3d at 233. The Jones court did,
however, note that “two other district courts had found that sexual assault allegations fell within the
scope of [an] employment agreement.” Coffey v. Kellogg Brown & Root, No. 1:08-CV-2911-JOF,
2009 WL 2515649 (N.D. Ga. 2009) (referencing the two following cases: Cravetz v. Halliburton,
No. 7-20285-CIV-ZLOCH (S.D. Fla. 2007); and Barker v. Halliburton Co., 541 F. Supp. 2d 879
(S.D. Tex. 2008)).
34. See Jones, 583 F.3d at 233.
35. Id. at 242. To view the court’s reasoning in affirming and remanding the case, see id. at
233-42 (utilizing a two-part analysis to determine whether a party should be compelled to arbitrate a
claim).
36. See Associated Press, Judge Sets 2011 Trial Date for Iraq Rape Case, ABC NEWS, Dec. 8,
2009, http://abcnews.go.com/Business/wireStory?id=9282190.
37. See, e.g., Dlouhy, supra note 5.
38. See Kathleen Parker, The ‘Rape Supporter’ Ploy, WASH. POST, Oct. 25, 2009, available at
https://www.washingtonpost.com/wp-dyn/content/article/2009/10/23/AR2009102303191.html.
39. Senator Franken was elected after a drawn out process with Norm Coleman after recounts
and legal battles postponed Minnesota from declaring victory for either candidate for months. See
John W. Mashek, Franken Finally Nearing Victory over Coleman in Minnesota Senate Race, U.S.
(09) FORMAT 2 ADAMS.DOCX (DO NOT DELETE) 4/5/2011 1:48 PM
[Vol. 11: 253, 2011] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL
259
Defense Appropriations Bill which would have barred the U.S. Department
of Defense from working with any private defense contractor that required
their employees to settle all discrimination claims, including those of sexual
assault, through mandatory arbitration.40 Because Senator Franken authored
the amendment, it became known as the “Al Franken Amendment.” From
its inception the Amendment was controversial.41 Support for, and
opposition against, the Amendment fell almost strictly along party lines.42
The original Amendment, as passed in the Senate, was a short, strict
prohibition on the Department of Defense from employing any private
defense contractors that included mandatory arbitration clauses in their
contracts with employees.43 However, neither the Department of Defense
nor President Barack Obama and his administration fully supported the
NEWS & WORLD REPORT, June 16, 2009,
https://www.usnews.com/opinion/mashek/articles/2009/06/16/franken-finally-nearing-victory-overcoleman-in-minnesota-senate-race.html.
40. See Stephen Clark, For Franken, No More Mr. Funny Guy, FOXNEWS.COM, Dec. 18,
2009, https://www.foxnews.com/politics/2009/12/18/franken-mr-funny-guy. Senator Franken stated
that he was moved to act on this matter after hearing about Jones’s experience. Al Franken,
Remarks on Defense Contractor Mandatory Arbitration Amendment, Oct. 6, 2009,
http://franken.senate.gov/?p=news&id=710.
41. See Parker, supra note 38.
42. See id The Senate vote on the amendment on October 6, 2009, passed sixty-eight to thirty;
all thirty votes against the amendment were cast by Republicans. Id.
43. See H.R. 3326, 111th Cong. § 8118 (2009), available at
http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=111_cong_bills&docid=f:h3326eas.txt.pdf. The exact text of the
amendment read:
SEC. 8118. (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.
Id. See also Michael M. Rosen, Franken’s Craven “Anti-Rape” Amendment, NAT’L REV., Nov. 17,
2009,
http://article.nationalreview.com/?q=NTlkNDRlZWExNzdiNTkzYmI5MmQxNGVjYjQ5MTYzNjI
=.
(09) FORMAT 2 ADAMS.DOCX (DO NOT DELETE) 4/5/2011 1:48 PM
260
strong language of the Amendment.44 Both the Defense Department and the
White House expressed concern that the Amendment was overbroad and
could be unenforceable.45 The Defense Department was particularly worried
that “the Pentagon and its contractors ‘may not be in a position to know’”
whether private defense companies that they subcontracted with utilized
mandatory arbitration clauses in their employees’ contracts.46
In response to these concerns, members of the House and Senate
narrowed the final language of the Franken Amendment in two ways: (1)
arbitration was to be allowed in cases where the defense secretary or a
deputy “personally determines [it] necessary to avoid harm to the national
security interests of the United States”; and (2) the scope of the Amendment
was limited so that only companies that had contracts with the federal
government that are worth one million dollars or more were required to
comply with the mandate.47
President Obama signed the Department of Defense Appropriations Act
2010, including the revised Franken Amendment, into law in December
2009.48 A review of the Amendment demonstrates how influential Jones’s
claims against Halliburton/KBR may have been to this legislation, as many
of her tort claims against Halliburton/KBR are specifically listed in the
Amendment.49 The pertinent part of the final version of the Amendment
reads:
(a) None of the funds appropriated . . . by this Act may be expended for any Federal
contract for an amount in excess of $1,000,000 . . . unless the contractor agrees not to:
(1) enter into any agreement with any of its employees or independent contractors that
requires, as a condition of employment, that the employee or independent contractor
agree to 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
44. Rosen, supra note 43. The Obama Administration would only support the “intent” and not
the “content” of the amendment. Id. Senator Daniel Inouye (D-Hawaii), chairman of the Senate
Appropriations Committee, also “raised concerns that it could leave defense contractors vulnerable.”
Dlouhy, supra note 5.
45. See Parker, supra note 38.
46. Id. The Department of Defense wrote a letter to numerous senators stating that the
Pentagon and its contractors “may not be in a position to know about such things. Enforcement
would be problematic.” Id. The Defense Department additionally stated, “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.” Id.
47. Dlouhy, supra note 5.
48. Amanda Terkel, Obama Signs Franken’s Anti-Rape Amendment into Law,
THINKPROGRESS.ORG, Dec. 21, 2009, http://thinkprogress.org/2009/12/21/obama-franken.
49. See H.R. 3326, 111th Cong. § 8116 (2009). See also Rosen, supra note 43.
(09) FORMAT 2 ADAMS.DOCX (DO NOT DELETE) 4/5/2011 1:48 PM
[Vol. 11: 253, 2011] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL
261
assault and battery, intentional infliction of emotional distress, false imprisonment, or
negligent hiring, supervision, or retention; or
(2) take any action to enforce any provision of an existing agreement with an employee
or independent contractor that mandates that the employee or independent contractor
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 . . . .
(d) The Secretary of Defense may waive the application of subsection (a) or (b) to a
particular contractor or subcontractor for the purposes of a particular contract or
subcontract if the Secretary or the Deputy Secretary personally determines that the waiver
is necessary to avoid harm to national security interests of the United States, and that the
term of the contract or subcontract is not longer than necessary to avoid such harm.50
III. ANALYSIS
A. The Arguments in Favor of the Franken Amendment
Mandatory arbitration clauses in employment contracts certainly
suffered a “black eye” after the negative publicity that they received
throughout Jones and the Franken Amendment enactment process.51 The
holding of Jones itself evinces a potential weakening of mandatory
arbitration clauses in employment contracts because the court allowed some
of Jones’s claims to be litigated even though the contract called for them to
be resolved through arbitration.52 Consequently, a valid question arises as to
why Congress felt it necessary to enact legislation that reigns in mandatory
arbitration clauses in employment contracts if they are already losing public
and legal support.
1. Preempt the Courts
One reason why Congress may have wanted to enact the Franken
Amendment is because in Jones, both the district court and the Fifth Circuit
disagreed with an analogous case that the same district court had ruled on
50. H.R. 3326, 111th Cong. § 8116 (2009).
51. See generally Parkinson, supra note 4; McGreal, supra note 1 (highlighting the arguments
used against mandatory arbitration clauses in employee contracts).
52. See Jones v. Halliburton Co., 583 F.3d 228, 242 (5th Cir. 2009).
(09) FORMAT 2 ADAMS.DOCX (DO NOT DELETE) 4/5/2011 1:48 PM
262
just over a year before in Barker v. Halliburton Co.53 Thus, Congress may
have wanted to preempt the Fifth Circuit from overturning its own decision
again.54 Congress also might have wanted to extend the ruling from Jones
so that it applied to other courts in the country as well.55
In Barker, the district court reviewed arbitration language in an
employment contract similar to the arbitration language in Jones.
56 Like
Jones, the plaintiff in Barker, Tracy Barker, brought suit against Halliburton
for claims stemming from alleged sexual harassment she experienced while
working for Halliburton in Baghdad.57 However, unlike in Jones, the Barker
court concluded that Barker’s claims did fall within the scope of the
mandatory arbitration provision in her employment contract.58 The court’s
logic in so holding was that Barker’s claims were “predicated on the failure
of the Halliburton defendants’ employees to follow company policies
regarding, among other things, sexual harassment.”59 As an example of this
predication, the court specifically pointed to Barker’s negligent-undertaking
claim because in that claim Barker herself alleged that Halliburton
“negligently undertook to provide proper training, adequate and sufficient
safety precautions . . . [and] adequate sufficient policies in the recruitment,
53. See Barker v. Halliburton Co., 541 F. Supp. 2d 879 (S.D. Tex. 2008) (granting defendant
Halliburton’s motion to compel arbitration against an employee who filed a complaint claiming that
the defendant retaliated against her following her reporting sexual harassment). The trial court in
Jones distinguished Jones from Barker on the grounds that the perpetrators’ conduct was outside the
scope of the arbitration clause, stating, “Just because an assailant’s actions happen to be in violation
of his employer’s policies, and those policies also govern plaintiff’s behavior, does not necessarily
render the assault related to plaintiff’s employment for purposes of arbitration.” Jones v. Halliburton
Co., 625 F. Supp. 2d 339, 353 (S.D. Tex. 2008).
54. See generally Franken, supra note 40. Compare Jones, 583 F.3d at 242 (ruling that the
rape-related claims were not arbitrable), with Barker, 541 F. Supp. 2d at 890 (holding that the raperelated claims were arbitrable).
55. See Franken, supra note 40.
56. See Barker, 541 F. Supp. 2d at 883. The arbitration clause at issue read:
You also agree that you will be bound by and accept as a condition of your employment
the terms of the Halliburton Dispute Resolution Program which are herein incorporated
by reference . . . . [A]ny 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, [or claims] you have against [any] other parent or affiliate of
Employer, must be submitted to binding arbitration instead of the court system.
Id.
57. Id. at 882. Barker’s complaints were “negligence, negligent undertaking, sexual
harassment and hostile work environment, retaliation, fraud, and intentional infliction of emotional
distress, arising from, inter alia, an alleged sexual assault by a State Department employee while in
plaintiff’s living quarters in Iraq.” Id. at 887.