I’ve been sitting on this one for a while.  Every time I tried to write about it, it came across as either too indignant or too glib and I gave up.  But with the issuance of a final rule from the Defense Department, the Franken Amendment is getting some attention again.  So let me try this one more time.

The Franken Amendment was Al Franken‘s first piece of substantive legislation upon being elected to the Senate.  He tacked the amendment onto a defense appropriations bill.  It stated that, if you contract with the Department of Defense, you can’t prohibit your employees from arbitrating certain employment claims.  Franken was very vocal about his motives in pushing the amendment.  He told the story of Jamie Leigh Jones, who alleged that, while working for a Halliburton subsidiary in Iraq in 2005, she was gang-raped by co-workers.  When she tried to sue Halliburton, it argued that, pursuant to an agreement she signed, the dispute belonged in arbitration.  The amendment passed 68 to 30.

What got me worked up about this was the way the Senators who opposed the amendment were portrayed.  This piece from the San Francisco Chronicle argued that these Senators were in favor of rape — that “they worked very hard to help improve the welfare of the nation by essentially enabling rape and sexual abuse . . . .”  Now I know that the Chronicle is not famous for its level-headed reporting.  And I know that columnists and commentators try to be controversial.  But seriously, can’t you be for arbitration and against rape?  The issue isn’t whether she gets to pursue her claim.  The issue is whether she pursues it in court or before a neutral arbitrator (often a retired judge) selected by the parties.

Here’s another often-overlooked point.  The amendment was unnecessary.  Halliburton’s efforts to compel Jones to arbitrate failed.  The 5th Circuit Court of Appeals ruled that the arbitration agreement didn’t prohibit her from pursuing her claims for sexual assault in court.  So why did we need legislation that covers not just vicious sexual assaults but “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”?

By its terms, the amendment only applies to contractors who receive DoD appropriations over a million dollars in the fiscal year ending September 30, 2010.  So expect the issue to come up again.  When it does, just maybe there will be a rational debate.  I know that that seems like a lot to ask.

[UPDATE:  As reported in BNA’s Employment Discrimination Report (subscription required), Ms. Jones had her day in court.  The jury rejected her claims of sexual assault and further rejected claims that she was fraudulently induced to sign the arbitration agreement.]