Sen. Al Franken’s (D-MN) “rape amendment,” which guarantees that rape victims who work for defense contractors can pursue charges against their employers, has been championed by many but opposed by Obama’s Department of Defense. The Pentagon initially called the measure unenforceable. But the provision, part of the defense appropriations bill, made it through conference committee and is now supported by the White House.
So what changed?
A senior administration official explains to TPM: The White House was concerned about the original language, which would have prohibited the DoD from using companies whose employment contracts contained an “arbitration clause,” which would keep employees from taking the company to court for Title VII offenses, which include rape, sexual assault, harassment and false imprisonment. That language, the official said, may have forced the government to reneg on multi-billion-dollar contracts. Because of a clause in many of those contracts, the government would still have to pay the contractors, even though the work wouldn’t be performed.
Another concern: The Pentagon deals with a massive number of contracts and would never be able to make sure the arbitration clauses were stripped in all those contracts.
So White House staff, after a week or so perusing contract and grant law, came up with a “clever construct,” the official said. The contractors, in order to stay in the lucrative government contract business, don’t have to remove the arbitration clauses. But they can’t enforce them.
If it works the way the administration tells us, this is good news for Jamie Leigh Jones, the woman who inspired Franken’s amendment. While working for KBR in Iraq, Jones was allegedly drugged, gang-raped and locked in a storage container by her co-workers. She’s been fighting, unsuccessfully, to bring her case to court because of the abritration clause in the contract she signed.
It’s good news for her even though the new restriction will not be retroactive per se, and even though it doesn’t go into effect until 60 days after the President signs the appropriations bill.
But it will affect any company, such as KBR, once it signs a new contract. (And the major contractors sign a lot of contracts.) Here’s the real bite to the restriction: It will affect the entire company, and everyone who works for it.
So the second KBR signs a new contract, Jones — and anyone else with similar claims — will be able to take her case to court. If KBR tries to enforce their arbitration clause, they could lose millions in future government contracts.
Of course, there is a national security waiver. The secretary of defense can waive the restriction if, say, a contractor is the only one who can provide a certain service or product. But the secretary would have to explain, in detail, why no one else could fulfill the contract. And, according to the official, that explanation would be posted online, in public view. (The idea here being that another company who makes the same product could step forward.)
And the amendment will only apply to companies with contracts worth $1 million or more — but that will include most contractors.
If the amendment works the way the White House says, it will do what Franken wanted: Give rape victims their day in court.
The appropriations bill still needs to be approved by the Senate, where Republicans are threatening to filibuster in an attempt to stall health care legislation. But it is expected, eventually, to pass, and to be signed by the President.
