A Blow Against Silence
I’m old enough to remember Public Enemy’s response to the Beastie Boys’ “Fight For Your Right To Party,” that MTV staple that was some of their least mature work. Public Enemy’s response was Party For Your Right To Fight. I’m not drawing a political analogy so much as referencing a sentiment.
The original language … 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
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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.
In the real world, here’s how it works: ordinary folks sign contracts with giant defense contractors. There’s a lot of “boilerplate” in those contracts; things that ordinary people don’t understand or maybe even care about. Things like a “choice of law provision” that says, for example, New York law applies. They are a bunch of dense paragraphs. Lots of folks don’t read them. They’re not generally negotiable — the company doesn’t want to have to figure out what it agreed to with every employee, so the basic terms are not changeable unless the employee is someone with a lot of bargaining power.
In lots of these contracts, one of the piece of the deal is an arbitration clause. The employee “agrees” — that is, signs on the dotted line and becomes bound by, without thinking about or even realizing — that certain kinds of disputes, including discrimination claims and sexual assault in the workplace, will not be raised in a lawsuit, but will instead go to arbitration.
How and why arbitration panels are different from and better for corporations than courts is a longer discussion. Suffice it to say Senator Franken didn’t want to see any other young women in the position Jamie Leigh Jones was in.
Arbitration clauses, particularly in the context of sex discrimination, harrassment and assault, effectively allow giant corporations to decide for themselves when and how they will be held accountable for their actions, regardless of what the law says. I’m against that. I think it is a significant function of government to protect people from things that happen to them due to huge inequalities in bargaining power. In fact, that’s one of the major driving forces in the development of law between the 1880s and now, and the major stand-off over the meaning of the U.S. Constitution during the New Deal.
But this is not a law blog. What I really want to point out is the essential similarity between the use of arbitration clauses and the practices of college administrators. Lots of people have covered the recent report by the Center for Public Integrity about colleges’ attempts to silence women. Just like Halliburton, they encourage women to sign things that limit the rights they already have to seek redress. Arbitration panels often have nondisclosure rules, and the CPI report shows that colleges often seek to channel rape survivors into procedures that impose nondisclosure obligations, too.
Institutions want to silence rape survivors. It’s almost always in the institution’s interest not to let anyone say anything about a rape. Whatever the results are between the rapist and the survivor, the institution’s primary interest is that nobody find out about it. That’s true whether the institution is an employer, a prison, a college, a hospital or a church.
Whether to remain silent or when and how to speak is an individualized decision. Survivors should make those choices themselves, based on their own best interest. Some survivors may want to tell as few people as possible, or no one. Others may find strength and healing in saying out loud, again and again, that they were raped and that it was wrong. But so often, survivors are being pressured or forced to remain silent for the good of bigger, more powerful institutions. The Franken Amendment is a blow against that; a law that increases a rape survivor’s access to self-determination.
Now, how about a statute that says no institution of any kind that receives any federal funding in any capacity shall under any circumstances attempt to enforce a nondisclosure or confidentiality obligation so as to prohibit a survivor of sexual assault from describing the assault or the circumstances in which it occurred, or identifying the perpetrators thereof? Could we get that?