Cerqueira v. American Airlines, 07-1824. The plaintiff alleged that he was removed from an airplane because of his race (or, from the captain’s perspective, an “odd exchange.”) He sued and won a jury verdict (including punitive damages) under 42 U.S.C. § 1981. The airline claimed that it could kick people off under 49 U.S.C. § 44902(b) when it decides that some suspicious looking non-white person ("... is, or might be, inimical to safety."). No jury instruction was given on 49 U.S.C. § 44902(b) (or of the pilot’s discretion under 14 C.F.R. § 91.3(a)), and the First decides that AA would have won if it was given. The First notes that this really is not constitutional in nature.
Odds are you are not a member of the mile high club, so read on.
The First concludes that “[49 U.S.C. ] 44902(b) does not merely create a defense Footnote : the statute is an affirmative grant of permission to the air carrier. Congress specifically authorized permissive refusals by air carriers; Congress did not say § 44902 was merely creating a defense. It is the plaintiff who carries the burden to show that § 44902(b) is inapplicable.” So, an air carrier is only liable if their decision to boot someone is arbitrary or capricious based on the information known at the time without attributing any biases by the non-decision-maker to the decision-maker (as the jury instructions seem to have done). The First notes that it is dealing with respondeat superior liability under § 1981.
The pilot had testified that it wasn’t his decision to remove “for questioning” this guy with a pony-tail that was creepy. There was some indication that someone (who may or may not have been on that flight) had box-cutters confiscated earlier. Eventually the entire aircraft was off-loaded. When the police became involved, they became “concerned” about the passport of someone that might have been traveling with them.
The airline decided to “deny” rebooking to the plaintiff. The airline eventually told him that "our personnel perceived certain aspects of your behavior which could have made other customers uncomfortable on board the aircraft."
The Massachusetts Commission Against Discrimination ("MCAD") concluded that he had stated a prima facie case of discrimination and brought suit.
Does this mean that airlines can kick off partners in large law firms that try and make smalltalk with pilots, but end up being creepy and scaring people? Not sure.
During the trial, a jury was asked to determine the motivation for the airline’s decision. The airline argued that had it acted out of a legitimate concern for safety; Cerqueira, a South Florida resident of Portuguese descent, argued that none of this would have happened had he not looked Middle Eastern. The jury sided with Cerqueira. We believe the court of appeals, in setting aside the jury verdict, essentially legalizes racial profiling in commercial air travel.
Oh, speaking of airports: