Something odd happened in Texas just a few days ago. Tracy Barker, a former Halliburton employee who was sexually assaulted by her co-workers, had her case against Halliburton thrown out by a Bush-appointed federal judge. So why is this odd?
Well, actually, it may seem odd, but it's no longer unusual. The courts--designed to protect the minority from the majority, and often the last resort for people to vindicate their rights--are closing their doors to millions of Americans and sending some of them to secret arbitrations. In about 94% of the arbitrations involving what happened on the job, the employers win, and the employee is forced to pay the arbitrator just to hear their claims, as well the employer's legal expenses. Oh, and I forgot to mention that the arbitrator is chosen by the employer. Sound just?
As first reported by ABC News, Tracy Barker arrived in Baghdad in September 2004 to begin work for KBR, then a subsidiary of Halliburton. Not long after she arrived, Tracy's coworkers and supervisors made sexually abusive comments, berating and belittling her, and threatening her with physical harm. When she reported the abuse to Halliburton, Tracy was retaliated against.
In June of 2005, after intimidating her with stories about women who had been raped and left to die, Ali Mokhtare, a state department employee who worked closely with the Halliburton employees, attempted to rape Tracy. She was able to escape his attack, but not before Mokhtare had sexually assaulted her. Tracy reported the incident to her direct supervisor, who responded by offering to protect her in exchange for sexual favors. He persisted in his advances, and one evening, he entered her living quarters on a false pretense and sexually assaulted her.
Tracy Barker is not alone in having suffered sexual violence at the hands of her coworkers at Halliburton. The story of Jamie Leigh Jones, now widely known, parallels Tracy Barker's story. Before Jones left for Iraq, she was told that she would be living in a trailer with one other woman, but when she arrived in Baghdad, she discovered that she was stationed in a predominantly male barracks, where she reports that she never saw another woman. Like Tracy Barker, she was the object of belittling remarks and sexual advances from the men in her barracks, but when she requested to be moved to the living quarters that were promised her, her request was denied. On her fourth day in Iraq, Jamie Leigh Jones was drugged and gang-raped by five to six men.
Over two and a half years have passed since Tracy Barker and Jamie Leigh Jones were assaulted. Ali Mokhtare, who admitted to having assaulted Tracy Barker, is still working for the state department and has faced no disciplinary action. The men who raped Jamie Leigh Jones have not been brought to justice, and neither has Halliburton.
Because Tracy and Jamie signed an employment contract requiring binding mandatory arbitration, they may never have their rights vindicated in open court. The clause at issue in Halliburton's employment contract has prevented both Barker and Jones from suing for discrimination under Title VII of the Civil Rights Act of 1964 in a civil court.
According to Tort Deform, the problem with mandatory arbitration extends far and wide:
"Most Americans do not know it, but, on a regular basis, they inadvertently sign away their right to go to a public court and have a trial by jury. Often found nestled in a small section of a contract for things like a credit card or a form for a patient about to undergo surgery, arbitration agreements have a large impact on a person's ability to exercise his or her legal rights."
Judge Gray Miller, the judge who threw out Tracy's case, recognized, without irony that "sadly, sexual harassment, up to and including sexual assault, is a reality in today's workplace." Yet, he determined that she had agreed to arbitration when she signed her employment contract and, because of recent decisions by the Supreme Court and the Fifth Circuit Court of Appeals, that he had to uphold the arbitration clause rather than letting the case go forward in court. He placed the burden on Congress to address the problem, stating "The Supreme Court has held that statutory claims may be arbitrable as long as Congress has expressed no intent to the contrary."
Judge Miller was right about one thing. Congress will need to step in and fix this mess, because the courthouse doors are closing fast. There are some in D.C. who are starting to take notice. Two pieces of legislation, the Arbitration Fairness Act and the Civil Rights Act of 2008 would return many of the protections that Tracy, Jamie and the rest of us never should have lost.