CT Blue

I was only a bit surprised to see that the Obama Defense Department opposed Al Franken’s amendment to forbid government contractors from forcing the victims of sexual assault into arbitration, which is the equivalent of guaranteeing them no redress. The Obama Administration has been better than Bush on civil liberties, but it’s hard to imagine anyone being worse. Here’s the Defense Department’s rationale:

“The Department of Defense, the prime contractor, and higher tier subcontractors may not be in a position to know about such things. Enforcement would be problematic, especially in cases where privity of contract does not exist between parties within the supply chain that supports a contract,” reads the DoD note. “It may be more effective to seek a statutory prohibition of all such arrangements in any business transaction entered into within the jurisdiction of the United States, if these arrangements are deemed to pose an unacceptable method of recourse.”

Hate to say it, but this actually makes sense. Here’s the text of Franken’s Amendment:

Sec. 8104. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration 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.

It does seem that enforcement would be a problem. DOD would be required to inquire into each contractor, and each subcontractor, right down the line. Any subcontractor who violated would trigger non-payment for everyone concerned. It’s a cumbersome way to achieve Franken’s goal.

Maybe the reason it was worded this way was to make it a budget amendment, and thus not subject to filibuster; but that hardly seems likely, since it got 70 votes. Doubtless there’s some arcane reason why Franken chose this approach.

The obvious approach would simply have been to make any such agreement to arbitrate unenforceable if the employee involved was working on any covered government contract. That would make enforcement easy, because it would be unnecessary. All the employee would have to do is prove to the court that he or she was working on a covered contract, and the arbitration clause would bite the dust. (A better approach, but don’t expect it to every happen, would have been to outlaw employee arbitration agreements completely, since they are classic contracts of adhesion.) That appears to be what DOD is suggesting, and I think they’re right.