DOT ISSUES GUIDANCE TO PREVENT DISCRIMINATION IN AIR TRAVEL
February 3, 2017
DOT recently published two documents to prevent discrimination in air travel. The first was a report for airline personnel, entitled Guidance for Airline Personnel on Nondiscrimination in Air Travel, (the “report”), that addresses the removal by airline personnel of passengers for safety or security reasons before takeoff. The report notes that DOT recognizes that an airline’s decision to address passenger safety or security issues while airborne is often made quickly and with limited information. The Department also recognizes the difficult and important job of airlines to provide a safe and secure travel environment.
At the same time, however, DOT advised that a safe and secure travel environment is not the product of discriminatory practices. And, as a result, the report outlines scenarios to help airlines distinguish between events where a legitimate safety or security concern exists and events where airline concerns are based on assumptions and stereotypes related to a passenger’s race, color, national origin, religion, sex or ancestry.
DOT encourages all airlines to implement comprehensive anti-bias training to help prevent and reduce incidents of unlawful discrimination. The Department also encourages airlines to incorporate antidiscrimination guidance into airline training programs. Finally, DOT states that the guidance offered in the report is not prescriptive and that there may be alternative “measures, techniques, or procedures that can be effective for preventing unlawful discrimination against air travelers.”
The report suggests airlines adopt the acronym “BE FAIR” when an airline inquires about suspicious passenger behavior:
Be comprehensive: Conduct a comprehensive evaluation of the facts and circumstances at the time of the event. Airline personnel should ask the question: “If it were not for the passenger’s race, color, national origin, religion, sex or ancestry, would I be concerned that the passenger’s behavior rises to the level of a potential safety or security threat?”
Ensure Effective Communication: Actively communicate with all interested parties (including the passenger(s) in question) to clarify all facts known at the time of the event.
Follow Airline Protocol and Decision-Making Process: Follow airline protocol when conducting any safety or security inquiry.
Assess Each Situation Individually: Focus on specific facts to ensure that any action is based on suspicious behavior is reasonable. Any action based only on a passenger’s race, color, national origin, religion, sex or ancestry is not reasonable.
Inquire about the Potential Threat: Did the airline conduct its duty to investigate?
Resolve and Remedy the Situation: Airlines should include an array of conflict resolution techniques and explain its decision to all persons involved, to include the affected passenger(s).
The second document, entitled Passengers’ Right to Fly Free from Discrimination, uses a question-and-answer format to assist the flying public understand their rights when flying on commercial airlines. In it, the Department advises that its various sub-agencies work in tandem to make sure that passengers are afforded the right to fly free from all forms of unlawful discrimination. In particular, DOT ensures that passengers will not be denied boarding or removed from a commercial airline because the passenger appears to be Muslim, Arab, Sikh and/or South Asian or because they speak Arabic, Farsi, or another foreign language. Also, a passenger cannot be denied boarding or removed because he or she reads what appears to be materials written in Arabic, Farsi or any other foreign language.
DOT also ensures that passengers are not denied boarding or removed from a commercial airline due to their style of clothing. For example, a woman cannot be denied the right to fly because she wears a head covering such as a veil and a man cannot be denied the right to fly because he wears a turban.
However, the Department does advise that there are situations where a passenger might lawfully be denied from travel on a commercial airline. The law allows for U.S. and foreign airlines to refuse passenger transport if the airline determines that the passenger is, or might be, a threat to safety or security. This safety determination is made by the pilot in command of the flight or other airline personnel (such as a Ground Security Coordinator). It is important to note that any decision to deny a passenger travel based on a safety concern cannot be supported by arbitrary evidence. This means that the airline must conduct a reasonable inquiry into the facts supporting any action to deny a passenger transport on its airline. The DOT suggests that airline personnel, such as the pilot in command, ask the following question when determining whether or not a passenger should be denied air transport: “But for this person’s perceived race, color, national origin, religion, sex or ancestry, would I believe there is a need to remove this passenger from the flight?” If the answer is “no”, then the removal of the passenger would likely be considered unlawful.
It is important to remember that the DOT is particularly concerned with a passenger’s right to fly free from discrimination. However, the pilot in command of a commercial aircraft is ultimately responsible for the safety of the passengers on the aircraft. A pilot must make sure that any effort to deny a passenger transport on the aircraft is not determined only by the passenger’s race, color, national origin, religion, sex or ancestry. Instead, a determination to deny a passenger transport must be based on some other relevant factor that the airline official is aware of at the time of the incident.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).
Share This Post
Authors
