Perhaps befitting the former employer of Dick Cheney, KBR/Halliburton has taken the low road in asking the U.S. Supreme Court to bar a former employee from having a public trial of her claims that she was gang raped by co-workers in Iraq.

Jamie Leigh Jones

Jamie Leigh Jones won a notable victory in September when the 5th U.S. Circuit Court of Appeals ruled that a private arbitration provision in her employment contract did not cover several tort claims arising from the alleged gang rape while she was employed by KBR as a clerical worker in Baghdad.

The assault was not “related to” Jones's employment and did not arise “in the workplace,” the court said in Jones v. Halliburton, 583 F.3d 228. Jones was allegedly raped after work hours in her barracks bedroom.

KBR devotes most of a petition for Supreme Court review to the argument that the 5th Circuit contravened “the rule that arbitration clauses must be given the broadest pro-arbitration reading of which they are susceptible.” But in Cheney-esque fashion, it couldn't resist taking a gratuitous swing at Jones.

“Jones has gone to great lengths to sensationalize her allegations against the KBR Defendants in the media, before the courts, and before Congress,” a footnote to the petition says, citing her lobbying efforts on behalf of legislation that bans defense contractors from enforcing arbitration agreements in sexual assault cases.

The footnote continues:

Many, if not all, of her allegations against the KBR Defendants are demonstrably false. The KBR Defendants intend to vigorously contest Jones’s allegations and show that her claims against the KBR Defendants are factually and legally untenable.

Whether or not Jones's allegations are sensationalized or false has nothing to do with the arbitrability of her claims. In addition, as Stephanie Mencimer of Mother Jones points out, “[I]f KBR has been wrongly accused in such public forums as Congress and the media, wouldn't it be better off fighting the charges someplace it could be publicly vindicated?”

Attorney Stephen B. Kinnaird (Paul Hastings Janofsky & Walker, Washington, D.C.)  authored the Supreme Court petition. In an apparent expression of concern for sexual assault victims in general, he also says:

While Jones desires a jury trial for her claims, many employees would prefer the confidentiality of arbitration to filing public court complaints and enduring public jury trials on claims of sexual assault.

In another footnote, Kinnaird refers to the embarrassment and shame of some rape victims and quotes from a study which found that less than 5 percent of campus rapes in the U.S. are reported to police.

This argument is shameless since what also prevents rape victims from coming forward is the fear of being further victimized by defense lawyers -– in much the same way that Kinnaird attacks Jones in his brief.

Jones, who filed her lawsuit in May 2007, alleges she was drugged, beaten, and gang-raped by several co-workers following a social gathering outside her barracks where alcohol was consumed. The outcome of her case could affect that of Dawn Leamon, another former KBR employee who alleges in a suit filed last week that two co-workers sexually assaulted her in Iraq.

In a case that was handled privately, an arbitrator recently awarded $2.9 million in damages to Tracy Barker, a mother of five who alleged she was sexually assaulted while working for KBR in Iraq. Because of Title VII caps on damages, the final award was reduced to $1.4 million.

By Matthew Heller
2/1/10