Following the attacks of September 11, 2001, commercial airlines have increasingly subjected passengers who are, or are perceived to be, Muslim and/or Middle Eastern to profiling and discrimination by either refusing to allow them to board planes or by removing them from flights. In 2016, CAIR received numerous complaints and documented a wave of incidents in which airline personnel arbitrarily singled out and removed passengers who are, or were perceived to be, of Muslim and/or Middle Eastern descent without reasonable causes or explanations.
Passenger removals continue to occur despite the absence of credible or proportionate security concerns. While airlines maintain the right to refuse to transport any passenger whom the carrier determines to pose a threat to security, air carriers do not, and should not, have unfettered discretion to remove passengers based on their religious, racial, or ethnic background in violation of federal civil rights laws.
The underlying cause for each decision to remove passengers that CAIR has documented appeared to be based on the unsubstantiated fear or possible bigotry of an airline crew member or fellow passenger who felt “uncomfortable” by their presence. Such patterns of discriminatory conduct do not seem to be tied to a specific airline. CAIR documented the following discriminatory removals during 2016:
Air carriers are authorized to refuse transportation to a passenger whom “the carrier decides is, or might be, inimical to safety.” Moreover, federal aviation regulations designate the captain as “the final authority as to the operation of the aircraft,” and the “In-flight Security Coordinator… to perform duties specified in the aircraft operator’s security program.” Airline crewmembers therefore maintain the responsibility for the overall safety and order of the cabin, which inherently includes policing and law enforcement authority over passengers on the aircraft.
However, federal law also specifies that air carriers may not “subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex, or ancestry.” In response to the rise in complaints of racial and religious profiling by airlines, the United States Department of Transportation (DOT) issued several strong directives instructing airlines to avoid discrimination against their passengers. Specifically, the DOT advised: “Do not subject persons or their property to inspection, search and/or detention solely because they appear to be Arab, Middle Eastern, Asian, and/or Muslim; or solely because they speak with an accent that may lead you to believe they are Arab, Middle Eastern, Asian, and/or Muslim.”
The Office of Aviation Enforcement and Proceedings, which includes the Aviation Consumer Protection Division, is responsible for monitoring compliance with and investigating violations of the DOT’s aviation civil rights regulations. In exercising its enforcement authority, the Office maintains the power to issue consent orders, seek injunctive relief, and impose civil penalties on airlines found to have engaged in unlawful discrimination against individuals. The DOT also issues a monthly consumer report, which tracks the number of discrimination complaints filed against airlines. In recent months, the Air Travel Consumer Report noted a rise in complaints alleging religious, race, and national origin discrimination.
In addition to filing discrimination complaints with the DOT’s Office of Aviation Consumer Protection Division, aggrieved individuals may file private civil rights lawsuits in federal district courts against violating airlines. Unfortunately, however, ex post facto remedies to airline discrimination are insufficient. Many courts have deemed an airline’s decision proper unless it was “arbitrary and capricious,” but such a high legal threshold necessarily makes it exceedingly difficult for individuals to find adequate recourse for deprivations of their federal rights by airlines. Nevertheless, in determining whether the airline properly exercised its power, courts examine the specific facts and circumstances of the case as known to the airline at the time it rendered its decision. Courts do not consider other facts that are later discovered in hindsight and were unknown to the airline at the time of the decision.
Because captains are designated as the final authority on the aircraft and often must make swift decisions, the ultimate decision to remove a passenger may be based on inaccurate and misleading information from other crewmembers. As such, CAIR believes it is imperative to develop clear standards and policy guidelines for airline employees to follow when making the decision to eject a passenger from a flight for legitimate security concerns. Otherwise, individuals of Muslim and/or Middle Eastern background will continue to face discriminatory treatment by airlines when personal biases and prejudices are ratified through their removal from an aircraft.
Department of Transportation
[Note: For references, access the full report here.]
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