Recently there have been a number of incidents of Orthodox Jews being removed from airplanes by airline staff, allegedly because one or more of these passengers were not wearing masks. Many of these passengers have publicly disputed the airlines’ accounts. In one recent case, the passengers who were removed claim that the only one not wearing a mask was a young child who was not legally required to do so, and that what really occurred was anti-Orthodox discrimination. This raises the question: Can passengers removed from airplanes on the basis of alleged religious discrimination sue the airline under state civil rights statutes?
At first glance, it would seem obvious and logical that the affected passengers could sue the airline for religious discrimination. The Federal Aviation Act (FAA) provides that “An air carrier or foreign air carrier may not subject a person, place, port, or type of traffic in foreign air transportation to unreasonable discrimination.” Courts have held that individuals can bring a lawsuit under this section of the FAA.
The first seminal case on this subject was Hingson v. Pacific Southwest Airlines, a 1984 case from the Court of Appeals for the Ninth Circuit, in which a blind passenger claimed he was discriminated against because he was asked to sit in a bulkhead seat, and when he refused, was taken off the plane. The court ruled that there was a so-called “private cause of action” under the FAA. But that case involved an international flight. What about domestic flights—can passengers sue an airline for violating state anti-discrimination laws?
For years, airlines have claimed that under federal law, such lawsuits are preempted, or barred, by federal law. The FAA contains a “preemption clause” which provides that “a State, [or] political subdivision of a State… may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” The Airline Deregulation Act of 1978 (ADA) also contains a virtually identical preemption provision.
Relying on this provision, airlines have argued that federal law prohibits individuals from bringing lawsuits against them under state laws for anything that has to do with the price, route or service of an airline. The Ninth Circuit in Hingson indeed barred the plaintiff’s claims under state laws prohibiting discrimination in public accommodations on the basis that they were preempted by the federal statute. Subsequent cases, citing the Hingson decision, have reached similar conclusions.
O’Carroll v. American Airlines involved a lawsuit brought by a passenger for “wrongful exclusion” from a flight under common law. The Fifth Circuit ruled that the preemption provision of the FAA preempted any state law claim for wrongful exclusion. And in Morales v. Trans World Airlines, the U.S. Supreme Court adopted a broad interpretation of the language of the preemption provision of the FAA, holding that it preempted enforcement of state consumer protection laws against the airline.
In more recent cases, however, courts have differed as to what constitutes a “service” under the preemption provision of the FAA and the Airline Deregulation Act, leaving more room for passenger claims. In Biscone v. Jetblue Airways Corporation, the Second Department of the New York Appellate Division reviewed the case law on the issue and found that federal courts have divided on the meaning of the term “service.” The Ninth and Third Circuits have adopted a narrow interpretation of that term, to refer to such things as “the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail,” and not “an airline’s provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities.” The Fourth, Fifth and Seventh Circuits, on the other hand, have interpreted the term “service” more broadly to include such items as ticketing, boarding procedures and baggage handling, as well as, of course, the actual transportation itself.
Even when federal courts apply a broader definition of “service,” some state law claims have still been allowed to proceed against airlines. The Second Circuit, which includes New York, applies a three-part test, first propounded in Rombom v. United Airlines: Is the activity at issue an airline service? If it is not, the case may proceed; if it is, the next question is: How closely does the claim affect or relate to an airline service? Where only an indirect connection exists, the case may proceed. Otherwise, the inquiry proceeds to the third prong: Was the airline’s conduct “reasonably necessary to the provision of the service?” Where a court finds “outrageous conduct that goes beyond the scope of normal aircraft operations,” the case may proceed.
So where does all this leave us with regard to the question posed at the beginning of this article—what happens when an airline discriminates against passengers based on ancestry, national origin, ethnicity, religion and the like? If the crew asks a passenger to leave a plane or does not let the passenger board, allegedly because of religion or ethnicity or some other identifying category, is an action on that ground preempted by federal aviation laws?
In Abou-Jaoude v. British Airways, a California state appeals court allowed a discrimination case to go forward against an airline. The passenger, who claimed he was barred from a flight because of his ancestry and national origin, sued under a state statute requiring that all passengers be treated with civility, and also under the state’s civil rights law. The court ruled that while the FAA preempted the former claim, it did not preempt the latter under the state’s civil rights law barring discrimination based on ancestry or national origin. Distinguishing this case from Hingson and the other cases involving discrimination against handicapped passengers, the court noted that unlike the statutes invoked in those cases, the state civil rights law here applied generally to all business establishments and did not relate to the services of air carriers in particular.
Similarly, in Chowdhury v. Northwest Airlines Corp., also in California, a passenger brought an action under both federal and state civil rights laws, claiming he was discriminated against by the airline when he was denied the right to board a plane on the basis of his ethnicity. The airline moved to dismiss the state law claims as preempted by the ADA. The district court denied the airline’s motion, citing Ninth Circuit case law holding that federal preemption of claims relating to the “service” of an air carrier only applies to such things as frequency and scheduling of transportation—not refusing to board a passenger on a discriminatory basis.
Thus, the bottom line is that state-law claims brought against airlines for discrimination by passengers who allege that they were denied the ability to board a plane or were removed from a plane because of their religion, race, ethnicity, ancestry or national origin would not be barred by the preemption provisions in the Federal Aviation Act and the Airline Deregulation Act. Passengers with strong claims of such discrimination—that is, those with evidence to support them—are likely to prevail should the airline argue that such claims are preempted by the federal laws governing aviation.
Joey Aron is the founding attorney of Aron Law, PLLC, a boutique law firm in Brooklyn, where he focuses on FOIL litigation and matters pertaining to religious discrimination.
