Monday, December 5, 2011

An Odd Use of Title VII's National Security Exemption

While we are on the subject of odd and unusual discrimination claims, the Mandarin Oriental Hotel in Washington, DC has been accused of discriminating against a Muslim employee by barring him from serving a visiting Israeli delegation.
My immediate reaction to this was so what?  From a purely legal perspective (and hey, that's what the blog is really about) unless it affected a promotion or wage circumstance, there would be virtually no damage from such a work assignment and thus no violation of the law. A discriminatory assignment could be used as evidence in a case filed down the road for other conduct, but claiming discrimination for not being given a particular service assignment in a hotel sounds like a loser to me.
The case gets more interesting after the hotel filed its response, which claimed a so-called "National Security Exemption" for the hotel's actions. The hotel claimed that it was required by the State Department to provide a list of potential servers for the Israeli group. The State Department uncovered "irregularities" with several hotel employees, including the plaintiff in this case. The State Department then instructed the hotel to prohibit these employees from having any access to the Israeli group during its stay at the hotel.
Title VII expressly provides that an employer can fail or refuse to hire an employee for a position if the employment position is subject to any requirement imposed in the interest of national security, under any security program in effect or administered under any law or executive order. So it looks like the hotel, if they really were told by the State Department not to put these employees in contact with the Israeli delegation, is off the hook.
The broader question is whether it's right for foreign delegations to impose their prejudices here in the United States via the simple expedient of having their embassy raise the issue with US State Department. There are very few procedural or due process protections in such a situation. Stay tuned for further details.

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