Mandarin Oriental Hotel Accused For Discriminating Against Muslim Employee Barred From Serving Israeli Delegation

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

60 thoughts on “Mandarin Oriental Hotel Accused For Discriminating Against Muslim Employee Barred From Serving Israeli Delegation”

  1. “I bet the most liberal human rights activist would not get on a subway in NYC at night at least in some area.


    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?”

  2. 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.

  3. 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….

  4. 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….

  5. I like puzzling’s speculation about third party candidates affecting both parties … that would provide us all with some real fun

  6. 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.

  7. 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.

  8. 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.

  9. Rafflaw and SM,

    Since we’re speculating on the 2012 Republican ticket, I’ll give it to you now:


    I also think there will be third party runs affecting both “major” parties.

  10. 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.

  11. 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.

  12. rafflaw, I think that Newt might not be the latest flavor but the one. He is a known quantity to them.

  13. Suggestion Box from the LA Times:

    The Federal Aviation Administration plans to propose new rules for the use of small drones in January, a first step toward clearing the way for police departments, farmers and others to employ the technology…

    Drone maker AeroVironment Inc. of Monrovia, the nation’s biggest supplier of small drones to the military, has developed its first small helicopter drone that’s designed specifically for law enforcement. If FAA restrictions are eased, the company plans to shop it among the estimated 18,000 state and local police departments across the United States…

    “This is a tool that many law enforcement agencies never imagined they could have,” said Steven Gitlin, a company executive.

    Another police state advancement.

  14. Swarthmore,
    No way Newt could beat anyone. Obama would beat Newt without a problem He is just the latest flavor for the Republicans.

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