Equal Status Acts 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-037
Mr Kanti Sabherwal
V
ICTS (UK) Ltd
Keywords
Equal Status Acts 2000 to 2004 – Discrimination, section 1 – Ground of race, section 3(2)(h) – Disposal of goods and services, section 5(1) – Certain activities or measures not prohibited, section 14(iii) – Annex 17 to the Chicago Convention – Security protocol at airport
1. Delegation under the Equal Status Act 2000 to 2004
1.1. Mr Kanti Sabherwal referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts on 30 August 2007. A hearing was held on 26 November 2007. Final submission in relation to the above complaint was received on 15 March 2008.
2. Dispute
2.1. The dispute concerns a complaint by Mr. Sabherwal that he was treated less favourably by security agents working with ICTS (UK) Ltd on 22 October 2004 at Shannon airport on the ground of race contrary to section 5(1) of the Acts. The complaint of less favourable treatment arouse when security personnel insisted that Mr. Sabherwal, who was in a queue for check-in, was asked to produce alternative proof of identification with a residential address in addition to his passport.
3. Case for the complainant
3.1. Mr. Sabherwal, a British citizen, is of Asian origin. He has lived in Ireland for over 40 (forty) years and is married to an Irish citizen. His two children travel with Irish passports. On 22 October 2004, he and his family were travelling to the United States when, upon queuing for the check-in counter, ground staff belonging to ICTS (UK) Ltd asked to see his and his family’s tickets and passports. After examining them, the agent asked the complainant to step aside and to produce proof of residence. His wife, an Irish citizen, was not asked for secondary identification.
3.2. The complainant then insists that the security personnel asked him to produce a utility bill with his address on it. As he was travelling on his holidays, the complainant stated he naturally did not have such an item with him. He then asked to speak with a supervisor. A named supervisor came over and spoke with the complainant. This supervisor also insisted that the complainant needed to produce something with his address and that he (the supervisor) had a legal entitlement to ask for such proof.
3.3. The complainant argues that the above incident only occurred because of his skin colour. He stated that he believed that ICTS personnel singled him out from white people. He argues that he was the only non-white person in the queue and that he was the only person who was questioned and asked to produce additional documentation.
3.4. The complainant stated at the hearing that he was not aware of any legal requirement that he, a British citizen, needed to carry a document with his address on it when he was travelling. He stated that he found the questioning humiliating and embarrassing and that it upset his wife and children.
4. Case for the respondent
4.1. ICTS - International Consultants in Targeted Security - (UK and Ireland) Ltd provide aviation security and integrated security. Its aviation security, relevant to this complaint, deals with all aspects of flight, passenger, baggage and cargo security. In Shannon, the location of the incident complained of, the company provides primarily security for United States registered airlines.
4.2. The security processes that ICTS applies to its aviation security protocol is mandated by the United States government and is a legal requirement for all United States registered air carriers flying from Europe to the United States. Part of this process involves a security interview of all passengers prior to proceeding to check-in. This interview follows a standard format, however, it may vary from passenger to passenger, depending on their personal circumstances. These security processes are set out by way of statutory legislation, the Aviation and Transportation Security Act 2001 (US legislation) and more specifically in the Air Operator Standard Security Programme.
4.3. The respondent maintains that any passenger with the same set of circumstances would have been asked exactly the same questions and would have been treated in the same manner as Mr Sabherwal was, had they presented the same documentation as he did.
4.4. The respondent maintains that the security agent dealing with Mr. Sabherwal was dealing with the correct process of questioning when he asked the complainant questions about his residence in Ireland. This, the respondent maintain, had nothing to do with Mr. Sabherwal’s race or nationality.
4.5. The respondent argued at the hearing that Mr. Sabherwal, like every other passenger, was asked to produce a passport by a named security agent prior to reaching the check-in desk. He and his party did so. The security agent received three Irish passports and one British passport that belonged to the complainant. This meant that, in accordance with the established security protocol, the security agent had to request that Mr. Sabherwal produce a secondary form of identification that showed the complaints place of residence.
4.6. According to a contemporaneous report written by the security agent, Mr. Sabherwal took offence of this request and his wife accused the security personnel of being racist by stating something similar to: “You think you are above us, standing there asking us questions like that, your just being a racist”. According to the contemporaneous notes, the security agent attempted to explain the requirements of the security process and then sought out the security supervisor in charge of that flight to inform him of the complainant’s complaint.
4.7. The named security supervisor introduced himself to the complainant as being the person in change of the security for this particular flight. According to his contemporaneous report, the complainant continued to raise questions as to why his British passport was not good enough to travel with. At this juncture, the complainant’s wife accused the security supervisor of being a racist, an accusation that the security supervisor denied. He attempted to explain to the couple that it was because the security procedures required him to follow a certain protocol that he had to ask for secondary form of identification whilst also explaining that due to the nature of the security process and legal restrictions, he was unable to give an exact explanation as to express details of the security process. The security supervisor also offered the complainant a chance to discuss the matter with the airlines’ Ground Security Coordinator (GSC), an offer that was turned down by the complainant. The GSC is a direct employee of the airline and has the final say whether a person can board the flight.
4.8. At this time, the complainant was able to produce some credit cards with his name on them from his wallet and the security supervisor instructed the security agent to continue with the security interview. The security agent did so, no further issues were identified by the security protocol during them and the required security markings were applied. The complainant then proceeded to check-in.
4.9. A while later the complainant approached the security supervisor again to ask why he had been requested to produce a second form of id. The security supervisor reported that the complainant was agitated and that it was obvious that the security supervisor’s reason for not giving answer to his question was annoying the complainant. He repeated that he could not divulge security protocol specific information. The security supervisor again offered the complainant a chance to speak with the GSC, a person with higher authority than the security supervisor, but the complainant refused. The security supervisor then gave the complainant his name and the name of the Regional Manager at the request of the complainant.
4.10. In a letter dated 22 November 2004, ICTS’s Legal and Compliance Manager wrote to the complainant stating: “Unfortunately, due to the nature of the security process that we carry out, I am unable to provide you with the exact criteria applied during the interview process as this is deemed security sensitive information by the Unites States Transportation Security Administration and its dissemination is restricted by United States government statute 49 C.F.R. Parts 15 and 1520”.
4.11. The respondent refutes the complainants’ claim that he has spoken with the company’s help-line stating that the company has no such thing and is unable to divulge any information relating to security protocols.
4.12. The respondent denies any claim that it discriminated on the ground of race or any other ground against the complainant. They maintain that the security procedures applied to the complainant were done so in strict accordance with statutory requirements and without regard to the complainant’s race or ethnicity.
5. Conclusion of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. Section 3(1)(a) states:
“Discrimination shall be taken to occur –
Where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)”.
5.3. Section 3(2)(h) defines the ground of race: “that they are of different race, colour, nationality or ethnic or national origins”.
5.4. In making my decision I have taken cognisance of both oral and written submissions made by the parties. The last written submission was received on 15 March 2008.
5.5. Mr Sabherwal is a British citizen of Asian origin. The fact that Mr Sabherwal was questioned by security personnel at Shannon airport is not under dispute. What is under dispute is whether Mr. Sabherwal was asked for secondary identification because of his race and/or nationality?
5.6. While neither of the security agents involved during the alleged incident where present at the hearing (they are no longer employed by ICTS), the respondents issued contemporaneous reports written by them as evidence. I have also received a copy of an internal investigation carried out by ICTS’s Station Manager in relation to the way in which the incident involving Mr Sabherwal was handled. The report confirms, from ICTS’s point of view, that the security personnel involved in the incident both acted appropriately and in line with the company’s policies and procedures. It does acknowledge that at times some security screening issues can be frustrating to passengers as personnel do not “have that luxury and can sometimes find a scenario such as this difficult to explain/justify, that being said the passenger was advised on the spot how to proceed to a higher authority who represented the higher level of authority who represented the airline directly.” While I accept the contemporaneous notes as direct evidence, I must acknowledge their limited use as a defence. Parts of the notes explaining the reasons why the complainant was chosen for additional security questions have been blacked out. The respondent justified this by the need to protect security protocols.
5.7. While the respondent submitted that they could reveal the reason(s) to me, the equality officer, they could not – for security protocol reasons - reveal it to the complainant. In accordance with the principles of natural justice, I cannot accept such material as evidence.
5.8. While the respondents referred to legislation enacted in the United States to justify the reason why Mr. Sabherwal was selected to provide additional information to the security officials, I cannot accept them as a defence on Irish soil. While section 14(1) of the Acts may allow for certain measures and activities under national legislation, European legislation and/or legally binding international obligation on Ireland, it certainly does not mean that those measures and/or activities should be provided in a less favourable manner on the grounds of race or any of the other equality grounds unless the legislations and/or conventions specifically require them to do so. Section 14 of the Acts cannot be extended to legislation enacted in the United States.
5.9. The respondent referred to the Air Navigation and Transport Act, 1988 and S.I. 226/2003 – European Communities (Civil Aviation Security) Regulations 2003 and the Chicago Convention. Section 6 of the Air Navigation and Transport Act, 1988 states that –
“it shall be the duty of –
every person owning or operating an aerodrome, and
every person carrying on business at an aerodrome,
to comply with the requirements (including any requirements in relation to that aerodrome, or to the aerodromes in general, specified by the Minister in a direction under section 7 or in a licence or authorisation granted by him under the Acts) of public order and security and of the security and safety of the aerodrome and of the security and safety of persons and aircraft using that aerodrome.”
5.10. Section 6(2) of S.I. 226/2003 – European Communities (Civil Aviation Security) Regulations 2003 states: “An air carrier providing a service from the State shall establish, implement and maintain an air carrier security programme”.
5.11. Annex 2.4 of the Chicago Convention sets out the obligations between contracting states:
“Each contracting state shall ensure that the requests from other Contracting States for additional security measures in respect of specific flight(s) by operators of such other States are met, as far as may be practicable. The requesting state shall give consideration to alternative measures of the other State that are equivalent to those requested.” While the above enactments and the Convention require the presence of a security programme, I have not been presented with anything that states that the security programme must be carried out in the way that it was. Therefore, the respondent cannot rely as section 14(1) as a defence.
5.12. I accept that any air carrier must operate a security programme and that, for a variety of reasons, certain persons are selected for further questioning. However, while making this decision I must acknowledge that the respondent has not submitted any tangible evidence to rebut the complaint. The respondent’s evidence at the hearing states: “Due to the fact that the Complainant presented a passport that was not Irish, the security procedures then required Mr. Long to obtain a secondary form of identification which showed Complainant’s place of residence.” This evidence was subsequently confirmed in writing by the respondent. The only conclusion which I can draw from the statement is that the complainant’s nationality was the substantive reason why the complainant was selected for further questioning. I find this statement as an admission that the complainant’s nationality was the reason why he was expected to show secondary form of identification. This additional requirement that was imposed on the complainant because of his citizenship constitutes direct discrimination as defined by section 3(1) of the Acts. Unlike section 3(c) of the Acts, section 3(1) does not allow for objective justification for such treatment by a legitimate aim.
5.13. In making my order for redress I have taken into consideration the fact that while Mr. Sabherwal was inconvenienced and embarrassed by this treatment, he was able to avail of the service (fly to the United States).
6. Decision
6.1. The complainant has established a prima facie case of discrimination on the race ground contrary to section 5(1) of the Equal Status Acts. In accordance with section 27(1)(a) I make an order of €250 as compensation for the embarrassment and humiliation caused to the complainant.
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Tara Coogan
Equality Officer
11 June 2008