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Mr. Franken's arbitration amendment

Thursday, October 29, 2009

Kathleen Parker rightly criticized Sen. Al Franken's amendment banning defense contractors from enforcing arbitration clauses ["The 'rape supporter' ploy," op-ed, Oct. 25]. Although the amendment has been deceptively referred to as an "anti-rape amendment," its primary impact would be on discrimination lawsuits, not rape.

Mr. Franken's amendment bars arbitration of claims under Title VII of the Civil Rights Act of 1964 -- the principal discrimination law -- as well as sexual assault lawsuits. Discrimination lawsuits are much more common than rape lawsuits.

The Supreme Court's 1991 decision in Gilmer v. Interstate/Johnson Lane Corp. upheld binding arbitration of discrimination cases, and arbitrators routinely rule in favor of employees, just as judges and juries do.

By contrast, crimes such as rape can be prosecuted regardless of what an arbitration clause says, and they are not commonly arbitrated. Ironically, the very rape lawsuit that was the "impetus" for Mr. Franken's amendment was not covered by the victim's arbitration clause, as Ms. Parker pointed out.

Hans Bader, Arlington

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In her Oct. 25 column, Kathleen Parker defended the 30 GOP senators who opposed Al Franken's amendment to the defense appropriations bill. The amendment would restore access to justice for individuals who are sexually assaulted or harassed while working for defense contractors. Under current law, many defense contractors can use the fine print of employment contracts to strip employees of the right to go to court -- even if the employees are assaulted by co-workers in a lawless environment permitted by the employer.

Ms. Parker first argues that contractors might not know what is in their subcontractors' employment contracts. But that problem is easily solved -- by requiring disclosure of the contracts.

Ms. Parker then argues that Congress should prohibit binding arbitration for criminal cases. We could hardly agree more, which is why we support the Arbitration Fairness Act, a bill that would end binding arbitration for all employees and consumers. At the same time, we also urge Congress to pass Mr. Franken's amendment. That the amendment makes needed progress without ending forced arbitration for every American is no reason to oppose it.

David Arkush, Washington

The writer is director of Public Citizen's Congress Watch.

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