Secretary of Transportation Justifies Airline’s Unlawful Discriminatory Practice Against Israelis
Lawfare—often manifested in the form of illegitimate, frivolous lawsuits filed solely to intimidate—also entails the failure to apply existing law to protect fundamental human and civil rights. Among these is the right to equal protection and freedom from discriminatory treatment, guaranteed by numerous state and federal statutes prohibiting discrimination based on race, religion, national origin, sex, and other specified classes.
In late 2013, a formal complaint was filed with the U.S. Secretary of Transportation (Secretary) alleging illegal discrimination by Kuwait Airways (KA) on the basis of national origin, in violation of federal law proscribing such discrimination by air carriers. The complaint concerned the airline’s refusal to transport Israeli nationals on nonstop flights from New York to London. KA’s bigoted policy is readily apparent: to purchase tickets through the airline’s website, the passenger must select his or her nationality from a drop-down list of countries, as well as the passport issuing country. Israel is absent from these drop-downs and, consequently, Israeli nationals cannot buy tickets.
The Secretary denied the complaint earlier this year, asserting that KA had not violated any U.S. anti-discrimination law because the airline is required to comply with Kuwaiti law, which prohibits Israeli passport holders from entering Kuwait. As the attorney now pursuing this matter correctly articulated, “In essence, the Secretary determined that Kuwait Airways did not violate U.S. law because that airline was required by Kuwaiti law to discriminate against Israeli nationals.” The Secretary’s rationale is particularly unfounded because the flight at issue goes from New York to London; the fact that Israeli passport holders cannot enter Kuwait is wholly irrelevant. Moreover, if any entity conducts business in the United States, it must comply with U.S. law.
Dissatisfied with the response, Eldad Gatt, who filed the initial complaint, commenced an action in U.S. federal court in March 2014, appealing the Secretary’s denial and requesting appropriate relief, arguing that “[t]he Secretary has officially endorsed Kuwait Airways’ policy of boycotting Israeli nationals, and has explicitly authorized Kuwait Airways to continue its blatantly discriminatory practices.”
The Lawfare Project hopes the judiciary will enforce the law—where the Secretary failed to do so—and uphold the Equal Protection Clause of the U.S. Constitution. Further, should KA continue its unlawful and discriminatory practices, it should no longer be permitted to operate at U.S. airports. The continuation of such discriminatory business conduct is also a likely violation of New York State anti-discrimination law, given that KA services passengers from New York’s John F. Kennedy International Airport.