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
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)
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.
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
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.
MetroCowboy,
Likewise. I posted something about it on another thread and then found that Dredd had posted a comment here…
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.
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…
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?
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.
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.
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?
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.
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.
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?
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.
” … a problem that Congress has long been aware of and has done little to address.” … just like everything else
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.
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.”
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!
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.