Discrimination in the Air: The Thirty Year Legacy of Williams v. Trans World Airlines

Ali Chaudhry, Staff Writer

On August 12, 2006, thirty-year-old Raed Jarrar, an Iraqi who immigrated to the United States three years ago, was attempting to travel on JetBlue Flight 101 from New York’s John F. Kennedy International Airport to Oakland, California, when he was approached by two TSA officers.[1]  The officers told him he’d have to cover his T-shirt, which read in English and Arabic, “We Will Not be Silent.”  When Jarrar asked why, one of the TSA officers said, “Coming into an airport while wearing a t-shirt with Arabic letters on it was equivalent to going into a bank while wearing a shirt saying, ‘I am a robber.'”  Jarrar initially refused to cover up the shirt, first asking to speak to a supervisor, and then asking if there was a law prohibiting Arabic shirts.[2]  He finally relented when it became obvious he couldn’t get on the plane without complying.  The officials purchased a t-shirt for him to wear, changed his seats without consulting him, and forced him to sit in the back where flight attendants kept an eye on him.[3]  As ridiculous as this incident may sound, Jarrar’s story is not a unique one.  In today’s America, Muslim citizens are expected to leave their constitutional rights at the gates of the airport, and this trend has received active support from the courts.

In the most publicized case to date, an Arab-American secret service agent working for President Bush was denied a seat onboard an American Airlines flight.[4] Although the parties dispute exactly what happened, race or racial stereotyping played at least a part in the airline employees’ refusal to allow the agent to re-board the plane even after his identity had been confirmed.[5] In San Francisco, Ahsan Baig, a Pakistani businessman, was denied entry to United Flight 288 because the pilot became suspicious of the way he appeared to be talking to other passengers.[6]  Another incident in New Jersey involved a New York Family Court judge, Tejinder Singh Kahlon, a Sikh who refused to remove his turban in public for airport officials.[7]  In probably the most shocking case, a young Pakistani American woman was strip searched by Illinois National Guard troops at Chicago’s O’Hare Airport because she was wearing a traditional head covering.[8]

After the terrorist attacks on September 11, 2001, the landscape of civil rights in America changed forever.  The attacks impacted air travel more than any other aspect of American society.[9] After all, September 11 revealed aviation security to be a national defense function,[10] and a “beleaguered” aviation industry was quick to ask for federal assistance in drafting and enforcing of security mandates.[11]  Since the tragic events of that day, courts have been faced with litigation as a result of the terrorists’ attacks, allegations of air carrier racial discrimination, and actions involving unruly passengers.[12]  A troubling aspect of post-9/11 litigation in the aviation industry has been the claims involving of racial profiling and discrimination,[13] as well as denial of service to passengers who may be viewed as a security threat simply because of the color of their skin, perceived ethnicity, religion, or race.  Even more troubling is the trend that courts are increasingly giving deference to airline crews and pilots in ejecting passengers based on any suspicion, and such passengers have no legal remedy even after their innocence is proven.

As public carriers, “[a]n air carrier . . . may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex or ancestry.”[14]  Although an air carrier cannot discriminate, the airline captain is granted wide discretion in denying boarding to any passenger,[15] and the captain’s decision will be upheld unless it is deemed arbitrary or capricious.[16]  The standard that the “pilot in command of an aircraft is directly responsible for, and is the final authority as to the operation of that aircraft”[17] is engrained in the theory that safety is paramount, and that any suspicions with respect to a passenger’s conduct is best resolved on the ground — not in the air.[18] In most cases, while passengers claim race-based discrimination as the primary reason for their ejection from the plane, the airline crews regularly insist that safety was the dominant factor in their decisions.[19]  Even so, does the law then allow for racially discriminatory behavior to be allowed in the name of safety? Continue reading “Discrimination in the Air: The Thirty Year Legacy of Williams v. Trans World Airlines”