Fifth Circuit declines to compel arbitration in rape case

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October 8, 2009

Fifth Circuit declines to compel arbitration in rape case 

Allison Torres Burtka

In a high-profile case involving the defense contractor Halliburton Co., the Fifth Circuit held that an arbitration clause in the company’s employment contract did not apply to certain claims brought by Jamie Leigh Jones, an employee who was raped and beaten by coworkers. The decision "may well have a significant effect on other victims of sexual assault," said John Vail of the Center for Constitutional Litigation, who represented Jones on appeal.

Photo: Getty Images

A woman who worked for a Halliburton Co. affiliate in Iraq and alleges she was drugged, beaten, and gang-raped by other company employees can pursue her claims in court rather than arbitration, the Fifth Circuit has held, 2-1. (Jones v. Halliburton Co., 2009 WL 2940061 (5th Cir. Sept. 15, 2009).)

The plaintiff, Jamie Leigh Jones, sued Halliburton for various claims, and the company argued that her employment contract compelled arbitration. The contract said that "any and all claims that you might have against employer related to your employment . . . and any and all personal injury claim[s] arising in the workplace . . . must be submitted to binding arbitration instead of the court system."

The district court had held that some of Jones's claims--including sexual harassment and hostile work environment under Title VII; retaliation; and fraud in the inducement to agree to arbitration--belonged in arbitration. But it held that her claims of assault and battery; intentional infliction of emotional distress; negligent hiring, retention, and supervision of the employees involved; and false imprisonment were not arbitrable. The Fifth Circuit, considering an interlocutory appeal, affirmed the district court's decision.

Judge Rhesa Hawkins Barksdale wrote for the majority: "Halliburton/KBR essentially asks this court to read the arbitration provision so broadly as to encompass any claim related to Jones's employer, or any incident that happened during her employment, but that is not the language of the contract."

Jones alleges that before the assault, she had complained of sexual harassment, but Halliburton retaliated against her and other female workers for doing so. After she reported the assault to a Halliburton employee and had a rape kit administered at an Army hospital, Halliburton neither investigated nor disciplined the alleged rapists and confined Jones under armed guard, according to her lawsuit.

When she asked to return home temporarily on medical leave, she was threatened with losing her job; she was not allowed access to counsel or law enforcement personnel or to call home, she claims. The State Department eventually secured her release.

Now, "after two and a half years of really hard litigation, she's going to get to a starting point," said John Vail, vice president and senior litigation counsel of the Center for Constitutional Litigation in Washington, D.C., who argued Jones's case before the Fifth Circuit.

The decision "may well have a significant effect on other victims of sexual assault," as it supports the proposition that sexual assault lies outside the scope of mandatory arbitration, Vail said. "Even under the broadest fiction of assent to approve a boilerplate agreement, you don't assent to the intentional bad acts of others."

The case has drawn attention to the issue of mandatory arbitration, said Cliff Palefsky, a San Francisco lawyer who testified before Congress in support of the Arbitration Fairness Act on the day Jones was decided. The bill, introduced earlier this year, would prohibit mandatory arbitration provisions in employment contracts.

On October 6, the Senate passed an amendment as part of the Department of Defense Appropriations Act that would prevent defense contractors like Halliburton from forcing their employees to arbitrate sexual assault or Title VII claims.

Yesterday, Jones testified before Congress that "it should not be legal for a large multibillion-dollar corporation to force [arbitration] on a person who needs a job to survive and doesn’t understand what the process involves."


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