There is an interesting lawsuit filed against the Mandarin Oriental Hotel in Washington, D.C., which stands accused of discriminating against a Muslim employee by barring him from serving an Israeli delegation — claiming a “national security exemption” for such religious and cultural discrimination. The man, Mohamed Arafi, was previously cleared in a security check with the FBI and handled other foreign guests, including dignitaries. He is of Arab ancestry. He is a naturalized citizen of Moroccan descent. I will be discussing the case today on CNN.
The motion was filed yesterday in U.S. District Court for the District of Columbia and claims that the Mandarin defended its actions as simply ” following a mandate from the federal government regarding a matter of national security.” The hotel allegedly cited the State Department’s Bureau of Diplomatic Security Service (DSS) as the cause for its discriminatory treatment.
In the complaint below, the following scene is described:
Ms. Escander stated to Boris, “Boris, Israel is here. You go up and get the dry cleaning for Mohamed.” Mr. Arafi was confused and asked for an explanation. Ms. Escander stated to Plaintiff, “You know the Israeli delegation is here. You cannot go on the 8th and 9th floor (to pick up or deliver laundry).” Plaintiff asked for further explanation. Ms. Escander stated, “You know how the Israelis are with Arabs and Muslims. It’s better if you just let Boris go.” Boris is of European and Caucasian descent. Boris was not employed in the dry cleaning department and retrieval and deliver of dry cleaning was not a part of his regular work duties.
In response the Hotel claims the exemption under national security law:
Under this exemption, an employer following a mandate from the federal government regarding a matter of national security cannot form the basis of Title VII liability. Title VII’s national security exemption applies to the Hotel’s actions because the State Department specifically required Plaintiff to obtain a security clearance, yet the State Department did not grant him such clearance. Adjudicating Plaintiff’s Title VII and DCHRA discrimination and retaliation claims necessarily would require this Court to evaluate the merits of the State Department’s security clearance decision.
If the hotel can show that they were barred by the State Department, most court would likely militate in favor of dismissal (despite long-standing objection to these types of agency actions). That is precisely what the hotel claims:
prior to a two- day visit to the Hotel by the Israeli Defense Minister and his delegation (the “Israeli Delegation”), the State Department required the Hotel to provide a list of all colleagues who could potentially have access to the Israeli Delegation for the State Department to conduct appropriate background checks. The State Department uncovered “irregularities” for several Hotel colleagues, including Plaintiff. The State Department instructed the Hotel to prohibit all of these colleagues, including Plaintiff, from having any access to the Israeli Delegation during its two-day stay at the Hotel. Plaintiff was only scheduled to work one shift during this visit.
This is a question that would be best addressed after discovery. The hotel will have to support this statement with a clear directive from the State Department. The Plaintiff suggests that he had never been subject to this type of barrier — raising some question over the directive. It is not uncommon for there to be back channel communications from foreign delegation security on access issues. The Israelis are known for particularly tight security rules. There is also the question of the national security exemption which is generally applicable to hiring and firing decisions.
Here is what appears to be the exemption cited in the motion:
Section 703(g) provides that:
Notwithstanding any other provisions of this title, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, if–
(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive Order of the President; and
(2) such individual has not fulfilled or has ceased to fulfill that requirement.
It refers to hiring or firing. Of course, there remains the question of the hotel’s necessary adherence of a directive by the federal government even if this provision is not read broadly — assuming such a directive was issued.
The motion to dismiss below also raises some significant procedural challenges and notes that the complaint lacks some key elements. The most significant in my view is the following alleged deficiency:
Plaintiff has not alleged that he experienced an “adverse employment action” under Title VII or the DCHRA or that the Hotel treated him differently than similarly situated non-Muslim colleagues who were unable to secure a security clearance from the State Department.
That would certainly have to be alleged in my view for a compelling case of discrimination. However, I am not convinced about the use of the clearance rationale for any and all employees. The complaint below alleges that this was not required in past cases. The case also highlights the unfairness of the current law where an agency may deny someone a clearance with few procedural and due process protections — a problem that Congress has long been aware of and has done little to address.
We previously saw the Waldorf-Astoria sued over allegedly forcing a Muslim employee to change his name tag so not to frighten the customers.
Here is the complaint: Complaint ARAFI
Here is the motion to dismiss: Mandarin Oriental lawsuit
I’m confused. Where is the harm? Certainly the stupidity and prejudice is painfully obvious but if the action does no harm to the employee what would cause him to seek redress?
Sorry if I missed something obvious.
I’m going to suggest a libertarian solution to these types of inanities. Should someone be barred from performing their work duties due to their employer caving to the prejudices of others, said employee should be sent home for the day with full pay and benefits. That ought to take care of it the free market way!
Frankly-
“Frankly, we called you into the office this morning to tell you that President Obama is giving a speech at our company today. Unfortunately, we have to inform you that you will not be allowed to attend the speech because you are a Presbyterian. I’m sure you will understand.”
Frankly
Whether there was any direct harm to that employee is irrelevant. As an American whose country and it’s laws are founded on fairness and equality, I am harmed, you are harmed and America is harmed.
” … a problem that Congress has long been aware of and has done little to address.” … just like everything else
Sorry Henman, I still don’t see harm to the individual.
rcambell, OK, does that mean I can file against the hotel also?
I’m not saying the hotel was justified or that the action made sense I just confused what he expect the outcome of this to be.
Frankly-
“Frankly, we called you into the office this morning to tell you that Kim Kardashian is giving a speech at our company today…”
Now do you understand?
Discrimination based on race, or ethnicity, or nationality, or religion is de facto harmful — harmful to the person discriminated against, harmful to the person doing the discriminating, and harmful to society. It is not beyond the pale to expect even the most cursory of readers of this blog to understand as much.
The constitution limits the ability of governments to engage in such discrimination and Congress has seen fit to extend such limitations (and then some) to interstate commercial transactions.
But harm or injury is different from damages — what is legally recoverable. But an award of money is not the only available remedy. A court of law could enjoin the employer from similar action in the future. And the court of public opinion can render its won judgment of such buffoonish if not illegal action.
This human rights, civil rights impaired type of thinking is in the head of professional lawyers too.
The Senate just passed a bill that will allow indefinite detainment, without charges or trial, of American citizens accused on American soil.
Obama says he will veto it.
Gene H,
I called you in today to inform you that Dominque Strauss Kahn will be staying at our Hotel today.
Frankly, now do you understand?
Obama says he will veto it. -Dredd (regarding defense bill that allows for indefinite detention of Americans on American soil)
Let’s hope that he does.
anon nurse 1, November 30, 2011 at 12:18 pm
Obama says he will veto it. -Dredd (regarding defense bill that allows for indefinite detention of Americans on American soil)
Let’s hope that he does.
===================
Very much so.
It could turn around the types of things this post by the Professor exposes: government fascism is parroted by the populace because people see the government as a parental figure in our nation.
indefinite detention (McCain-Levin) – they have lost their minds.
I got an email urging that I call my senators (which I did), but I wondered could they really require feedback on this?
I’m glad someone mentioned the senate bill on indefinite detention….I really expected that to be the first topic of discussion on the blog this am and was surprised that there was not mention of it…
How on Earth have we come to this? Two United States Senators propose a bill authorizing the indefinite detention of American citizens on American soil. A President who may (or may not) veto it. And a Supreme Court that would very likely uphold it as Constitutional. Have the American people become such sniveling cowards after 10 years of phony “terrorist threats” that they won’t even defend themselves against the real threat of the loss of our civil liberties? Have the American people become so stupid that they no longer understand our Constitution and how valuable it is to our lives as free men and women?
Apparently it will not require a putsch or a rigged election to bring Fascism to America. The building blocks are being laid one at a time in plain sight.
MetroCowboy,
Likewise. I posted something about it on another thread and then found that Dredd had posted a comment here…
HenMan wrote: “The building blocks are being laid one at a time in plain sight.”
Yes. And Fascism has been gaining a foothold “under the radar” for quite some time…, but not enough people seem to be paying attention.
A few comments on the “indefinite detention” issue posted to the following thread:
http://jonathanturley.org/2011/11/29/colorado-sheriff-sued-after-holding-deaf-man-for-25-days-due-to-lack-of-interpreter-after-unfounded-arrest/#comment-296147
There are several links in the following excerpt. Go to:
http://www.salon.com/2011/11/28/various_matters_endless_war_military_detention_the_fed/singleton/
Glenn Greenwald
Monday, Nov 28, 2011 1:32 PM Eastern Standard Time
Various matters: endless war, military detention, the Fed
Excerpt:
(2) Numerous people have emailed asking my views on the McCain/Levin bill providing for, among other things, military detention in the U.S. and a much broader explicit scope for the 2001 AUMF; I will perhaps write more about this tomorrow, but my views on it are summarized here and here, as well as in the discussion I had earlier about it on Twitter with Marcy Wheeler and Adam Serwer (which can be read, from the bottom up, here). The Obama White House has suggested (without overtly threatening) that it would veto this bill (primarily on the ground that it unduly restricts Executive power in these areas: if people are going to be militarily detained, it is the President who decides how and who, not Congress), but Jack Goldsmith argues [link fixed] why a veto is unlikely to happen.
http://www.lawfareblog.com/2011/11/is-the-president%E2%80%99s-veto-threat-credible/
Is the President’s Veto Threat Credible?
by Jack Goldsmith
Ben wrote last week about the Administration’s threat to veto the Defense Authorization Bill, in large part because of its detainee transfer and related provisions. As Josh Gerstein notes, “whether for political reasons or due to some complex internal dynamics, the administration seems at this point willing to put up more of a public fight over detainee-related strictures than it has in the past. However, whether that will ultimately translate to a willingness to blow up the defense bill with a veto is unclear.”
I doubt that the President will blow up the bill. Too many liberal democrats, including Senate Arms Services Chair Carl Levin, support it, so the president cannot charge political extremism. And as John McCain has said, “[t]here is too much in this bill that is important to this Nation’s defense.” Is the president really going to expose himself, in an election cycle, to the charge (fair or not) that he jeopardized the nation’s defenses in order to vindicate the principle of presidential discretion to release terrorists from GTMO or to bring them to the United States to try them in civilian courts? It is the right principle, but it is a generally unpopular one that the president has not to date fought for. I doubt he will start fighting for it eleven months before the election.
If I am right, it raises the question why the president “ratcheted up the stakes . . . with a threat of a veto,” as Senator McCain put it. He may have done so to appease the left side of his party. But failing to veto the bill after threatening one will hardly make the left happy; it is more likely to confirm its belief that he is spineless on detention issues. It will also undermine further the credibility of the president’s veto threat. This logic suggests that the administration would not have threatened a veto unless it intended to follow through. I still think electoral politics will win out, and that the administration will back down. But if I am wrong, and if the President acts on principle and vetoes the bill despite the political costs, one wonders why he did not fight for the principle earlier, when the political context was more favorable. (end of piece)
“Plaintiff has not alleged that he experienced an “adverse employment action” under Title VII or the DCHRA or that the Hotel treated him differently than similarly situated non-Muslim colleagues who were unable to secure a security clearance from the State Department.”
This is not quite as easy an answer as some might make it. If there is some question as to Mr. Arafi’s security clearance then given the history of terrorism against the Israeli’s, was it really so punitive to not have him serve them? Is this really a case of terrible discrimination, or perhaps a reasonable precaution? If the situation were reversed and it was a Jew, who is being excluded by high ranking Arab dignitaries, as has been the case for 70 years, what is the harm?
Well it has been the case. Jews were/are excluded from working for American Companies doing business with Arab countries, since the late 40′s and are today. Is there an uproar, I don’t think so.
Secondly, what damages were done to Mr. Arafi, save for not beig allowed to act as a servant to a specific foreign dignitary. His salary was’t docked, he wasn’t fired and there is no indication that the icident would in any was affect his career. Was he annoyed? Obviously.
Were I him would I be annoyed. Most definitely. However,
in the scheme of things this is really a trivial matter and does not rise to a cause of action and should be dismissed.
There are many more egregious cases of discrimination aimed at Muslim Americans and Muslims in general around the world. Were I the Israeli head of security for this visit I might well have wanted the man excluded. While of course terrorism in the US is overstated for nefarious purposes, it does exist and it has been directed at Israeli officials.
HenMan,
Yes to all your questions.
Keep sounding the alarm, people will keep hitting the snooze button but keep resounding … hopefully they’re too dumb to pull the plug.
As for Obama vetoing this bill, which he should, all the speculation will do us little good until he either signs, or veto’s it. My guess is he will veto it, because ratcheting up the issue and not vetoing it would be stupid. Then again who knows?
“Have the American people become so stupid that they no longer understand our Constitution and how valuable it is to our lives as free men and women?
Apparently it will not require a putsch or a rigged election to bring Fascism to America. The building blocks are being laid one at a time in plain sight.”
HenMan,
The answer to the first paragraph is that since 1964 ad the Goldwater defeat, certain elite elements in this country have spent billion$ in propaganda and disinformation to convince the majority of Americans of certain false propositions. They have decimated the court system by the appoitment of partisan judges and doe irreparable damage to our system of education. When you’re taught (or not taught)it in the schools and hear it on the air, many people succumb to believing fantasy.
As to the secod proposition, fascism is here already, it just hasn’t gelled yet.
http://www.huffingtonpost.com/2011/11/30/newt-gingrich-political-battle-fascists-apocalypse_n_1119507.html Gingrich is up thirty points on Romney in Florida. Romney is looking less likely, Blouise.
SwM,
From a Democratic Party viewpoint, that is great news but …. the Democrats are making tons of anti Romney commercials, all with Obama. Maybe they’re pushing things towards Newt.
It’s hard for me to see the Republicans as being that dumb, but then again … I have to remember Sarah Palin’s V P placement.
Mike,
How about a mic check at the White House….veto, veto, veto!
Mandarin Oriental Hotel managers are idiots!!!
rcambell, OK, does that mean I can file against the hotel also?
Wow! There’s a statement showing a lot of maturity.
First, a Gingrich nomination would be a wish come true to the Obama campaign, especially if he chose some like Bachmann as his running mate. Obama is no leftist, as most progressive Democrats will attest. He is a left-leaning moderate, as was Clinton. The American electorate would gladly cast their votes for a fit, once-married presumedly monogamous mixed race incumbent rather than for a rotund, pompous, filandering white lier currently on his third wife.
Second, would be interesting to see how many right-wingnut, evangelical Christian Alabamans or Texans might ask not to be tended to by a perceived-to-be-gay or lesbian hotel employee, or god-forbid a transexual…
Or ask to have their table changed in a restaurant if seated next to a 2 daddy family with a couple of well-behaved kids (I’ve witnessed this scenario in a Fresno chain restaurant – and that’s California!).
A whole lot of attention being given to ONE INDIVIDUAL… This person should feel grateful that he / she is allowed to live and work in the U S.. Let’s face it, it is far easier, and more economical to have one person paid in full, and given the day off, as versus having a group of this Israeli delegation magnitude “cancel” out if they didn’t want this individual “working” their function in any capacity..
I’m sure “The Mandarin: was going to say, “if you don’t like it – go elsewhere..”
What is WRONG with society…? When is it going to stop kissing All these FOREIGN “bums” / a,k,a, you know what, and listening to their constant complaining… All they are doing is wrecking life as we KNEW it..
NO ONE asked them to come to our “shores:… If they don’t like it, and realize that they are not the most wanted people in the world – and since they don’t try to assimlate into society, let them go elsewhere..
WHAT GOOD have they contributed to the Western World…?
And all these “bleeding heart societies” should take a look at the distruction caused by this religious group..
How soon they forget 9-1-1- The USS Cole, bombing of embassies, and on and on..
It’s time to push back, and throw their g.d. complaints about this, that and the other, into the you know where..
C’mon folks, just look how better we all were off WITHOUT these people in our midst…
They are costing society billions and billions of dollars with their antics…
Rachelle
mike wrote
This is not quite as easy an answer as some might make it. If there is some question as to Mr. Arafi’s security clearance then given the history of terrorism against the Israeli’s
=====================================================
mr. afari has no history of terrorism against anyone
WHAT GOOD have they contributed to the Western World…?
=====================================================
um, zero
literally, the zero
“Or ask to have their table changed in a restaurant if seated next to a 2 daddy family with a couple of well-behaved kids (I’ve witnessed this scenario in a Fresno chain restaurant – and that’s California!)” (Mike Canto)
Lord, that makes me mad …
Rachelle,
Unless you’re a Native American or descended from the forced slave-trade, you are the issue of immigrants. YOUR complaining is ridiculous, so shut the hell up.
anon nurse-
I think the Jack Goldsmith quote is right. That’s why I said, “A President who may (or may not) veto it”. I saw nothing in the Huffingtonpost article that indicated Obama’s threatened veto had anything to do with civil liberties issues. The stuff about Obama being a civil libertarian was proven to be crap long ago. His issue with the bill is that it gives more power to the military at the expense of Obama’s own power. This causes me to ask: has he forgotten that he is Commander-In-Chief of the Armed Forces, or has he secretly surrendered that power to the Pentagon and their contractors? As I see it, Obama wants to be President for the sake of being President, and his only guiding principle is “Go along to get along”. Unless there is a radical change in Barack Obama, he may well be re-elected, but history will rank him with George W. Bush and Warren G. Harding as a President who took America in the wrong direction.
@HenMan
As a progressive, my beef with Obama is that, in compromising with the party of ‘NO’ (aka GOP), he didn’t go far enough with the reforms he promised (as in too small a stimulus package, healthcare reform with no public option, dragging out the repeal of DADT too long, etc. He should have used his political capital to push through real healthcare reform, repeal of DOMA, the DREAM act, a massive jobs program, and tax increases on the wealthy during his first 6 months in office. But he has achieved more progressive changes than any President, ever.
@Rachelle
Foreign bums??? I imagine you mean ‘them coloreds and jews’. Where and when in the freaking country do you live? I’m only asking because I’d like to make sure I never go there. You are exactly what’s wrong with this country, and I wish, with all my heart, that you could be deported to wherever your ancestors came from. Or perhaps you were hatched on an Oklahoma farm from a cloned ostrich egg…
http://www.rasmussenreports.com/public_content/politics/elections/election_2012/election_2012_presidential_election/2012_presidential_matchups Gingrich leads Obama in new Rasmussen.
SwM,
Republicans like Rasmussen … The Center for Public Integrity lists Scott Rasmussen Inc as having been paid $95,500 by the Republican National Committee and $45,500 by the George W. Bush presidential campaign in 2003-04.
Blouise, I know. Maybe, they are trying to boost Gingrich.
Ron Paul just went nuclear on Newt.
Swarthmore,
No way Newt could beat anyone. Obama would beat Newt without a problem He is just the latest flavor for the Republicans.
Suggestion Box from the LA Times:
Another police state advancement.
puzzling,
I don’t agree with you too often, but I think you right about the drones.
rafflaw, I think that Newt might not be the latest flavor but the one. He is a known quantity to them.
Swarthmore,
He is known to them and to the rest of the voters that remember his antics as Speaker.
http://2012.talkingpointsmemo.com/2011/11/two-polls-show-newt-owning-florida-gop-race.php
Here is a detailed investigative news story out of Houston on the drones. Big Brother is going to be watching you. Be careful about skinny dipping or sunbathing in the raw in your back yard–some pimply faced guy may be watching you.
OS,
Thanks for that report – it’s appropriately skeptical of the justification for deploying these devices. The HPD comments were expected “… I wasn’t ready to publicize this… potential public safety applications include … evacuations, homeland security …”
At first drones will be used to aid in standard law enforcement efforts. This will get public buy in for the technology.
Then the drones will be focused on the domestic drug war and other revenue efforts which are profitable to law enforcement agencies.
Eventually drones will be used to further track, harass, and document activities of individuals seen as a threatening to law enforcement and government interests. By then they will be ubiquitous.
Rafflaw and SM,
Since we’re speculating on the 2012 Republican ticket, I’ll give it to you now:
Romney-Rubio
I also think there will be third party runs affecting both “major” parties.
If they want to do aerial surveillance, there are ways to do it honestly. IMHO, helicopters are not a good use of scarce money. They do what they do immensely well, but maintenance and fuel costs are very expensive.
There is a legal alternative. STOL (stands for ‘Slow Take-Off and Landing’) airplanes are an excellent substitute. This airplane in the video is made in North Carolina as a kit and can be had for well under $75,000. An almost identical one is also made in Europe. It is a slightly smaller version of the German Fieseler Storch used as an observation craft in WW-II. It is designed specifically for observation, but obviously an airplane with a 40 foot wingspan is not going to be peeking in your bedroom window.
This airplane burns less than five gallons of gas an hour and requires about the same maintenance as your car. It takes off at less than 20 miles per hour and can cruise anywhere between that number and a hundred.
This one is painted in authentic WW-II markings.
Puzzling,
You could be right about the third party run. I am not sold on Rubio as a VP candidate though.
puzzling, I though that would be the case two months ago but no longer. Gingrich is more likely now. Johnson is threatening to run as a libertarian, but there could be a fourth party also.
My guess is that no one now running will get the nomination and that Jeb Bush get it. That Romney’s numbers stay in the low 20′s indicates to me that people neither like, nor trust him. Newt is a dishonest clown with too much baggage. As for Rassmussen polling it has always been highly suspect. The media keeps annooting frontrunners because they haven’t a clue. I agree there will be a 3rd party, which may skew the results.
I like puzzling’s speculation about third party candidates affecting both parties … that would provide us all with some real fun
… and some great discussion points
This is one of those situation where maybe practicaticality should trump other “rights”….. Say for instance, would it be fair to a person of color to wait, serve or have any interaction… Say at a klan dinner?
I bet the most liberal human rights activitatist would not get on a subway in NYC at night at least in some area. Common sense at some point should prevail….
You can’t always predict what would happen….
Since were all over the board on this, …It surprises me that the judicial system seems to be so willing to see its own power eroded …I belong to several groups that have judges as members, they, as a group, don’t seem to be backseaters … It seems over the past 10 years both the executive and the legislative branches of gov have taken more of the judicial powers over for themselves….
Mike Canto-
I’m in general agreement with what you say, although I think you’re too generous to Obama. President Obama didn’t just compromise with the Republicans, he folded completely at the first sign of disagreement on nearly every issue. For example- his ill-conceived healthcare bill. The three major results of the bill, as passed:
1. A huge gift to the health insurance industry, which is the source of most of the problems with American healthcare. All young men and women, who traditionally don’t buy health insurance until later in their lives, are required to buy it now. This is a giant windfall to the health insurers.
2. The possibility of America having a Canadian or European style government-run healthcare system with NO insurance company involvement has now been eliminated for the next 5?, 10?, 20? years.
3. His bill has so little support from healthcare professionals and the American people in general that the Supreme Court will probably find it easy to declare parts of it unconstitutional with little or no backlash from anyone. After that, the bill will probably die a quiet death.
I also have to disagree with your statement, “But he has achieved more progressive changes than any President ever.” Just to mention a few Presidents who have achieved far more progressive changes than Obama:
Theodore Roosevelt
Franklin D. Roosevelt
Lyndon Johnson
You are absolutely correct that President Obama has aimed too low- it’s his greatest failing. I see no reason to give him four more years- we can do better.
“I bet the most liberal human rights activist would not get on a subway in NYC at night at least in some area.
AY,
I’ve been on the NY Subway System at all hours of the night, in all neighborhoods. I’ve never once felt threatened. I know though that you are not a native NY’er and so I understand where you’re coming from. The media, TV and movies have made NYC and other cities into far more dangerous places than they are. Usually, with the implication that the dangers come from minority populations, or young, poor White gangs.
The truth is that cities are far safer today the they have ever been. However, it is in the interests of the 1% to keep those in the 99% afraid and willing to trade our constitutional rights for an illusory safety.
As for your first point I think it is an apt analogy:
“This is one of those situation where maybe practicaticality should trump other “rights”….. Say for instance, would it be fair to a person of color to wait, serve or have any interaction… Say at a klan dinner?”