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