Mr. Franken’s Arbitration Amendment

Mr. Franken’s Arbitration Amendment

October 29, 2009
Originally published in The Washington Post

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.