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
Blouise, I know. Maybe, they are trying to boost Gingrich.
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.
http://www.rasmussenreports.com/public_content/politics/elections/election_2012/election_2012_presidential_election/2012_presidential_matchups Gingrich leads Obama in new Rasmussen.
@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…
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.
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.
“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 …
WHAT GOOD have they contributed to the Western World…?
=====================================================
um, zero
literally, the zero
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
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
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!).
rcambell, OK, does that mean I can file against the hotel also?
Wow! There’s a statement showing a lot of maturity.
Mandarin Oriental Hotel managers are idiots!!!
Mike,
How about a mic check at the White House….veto, veto, veto!
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.
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.
“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.
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?
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.
“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.