On Wednesday, Youtube stars Adam Saleh and Slim Albaher went viral on Twitter when they posted a video of Delta Airlines removing them from their flight after their Arabic conversation made other passengers uncomfortable. Just how much legal recourse does Delta have in situations like this?
The situation happened on a Delta flight from London to New York. Saleh called his mother, like he says he always does when he gets on a plane, to tell her when he’d be landing.
“I call her before I take off and when I land so that she knows I am safe and well,” Saleh said in a statement after the fact. “I was speaking in Arabic when a female passenger began shouting that they felt uncomfortable. This encouraged almost 10 other passengers to agree and shout the same thing. We were kicked off the flight while those passengers mocked us.”
— Adam Saleh (@omgAdamSaleh) December 21, 2016
Some are skeptical of Saleh and Albaher’s account of their expulsion; they are notorious Youtube pranksters, and many think this is just another stunt of some kind. Plus Saleh’s Twitter video only starts filming after they’re being escorted off the plane. But Albaher and Saleh insist they’re serious, that their past is being leveraged against them to cover up the Islamophobia they experienced, and The New York Times reports that another passenger has corroborated their story.
And even if it does turn out to be a hoax of some sort, it’s drawn attention to a definite trend. It’s one of many events this year that have gone viral after a Muslim or Arabic passenger was removed from a plane seemingly without doing anything wrong. There was Khairuldeen Makhzoomi, a student with UC Berkeley, who was kicked off a Southwest Airlines flight after a passenger heard him speaking Arabic. Or Hakima Abdulle, a hijabi woman, who apparently made her aircraft flight attendant “feel uncomfortable” after asking to switch seats with another passenger. There was also Nazia (another hijabi woman) and Faisal Ali, a young couple who made the flight crew feel “uneasy” because her husband was sweating, saying Allah, and texting. Or the Penn State professor, Guido Menzo, who was taken off the plane and questioned after a fellow passenger reported that he was furiously scribbling on paper (because he was doing math equations). Niala Mohammad wrote for The Guardian that she didn’t know how often Muslims got kicked off planes until it happened to her.
“We were removed from the plane for doing nothing more than requesting water and asking why we were still aboard an idling plane for more than five hours,” wrote Mohammad, who said she’d counted nine incidents of passenger removals regarding American Muslims in the media over the past 13 months. “[Khurram Ali, the former civil rights director for the Council on American-Islamic Relation’s (CAIR’s) New Jersey chapter] documented 27 airline discrimination complaint cases with three of those being “pulled off” or airline removal cases for CAIR’s New Jersey chapter during his short tenure. But as he pointed out, those numbers come nowhere near the amount being documented by CAIR on a national level.”
So just how does this happen so frequently? What are passengers’ rights in this area? Well, turns out the airlines have a lot of leeway in this arena. The Department of Transportation has guidelines for airlines to follow when they’re bumping passengers. Over-booking, for instance, is a scourge to travelers who find themselves rescheduling flights that have been intentionally booked too full to account for stragglers, but it’s also 100 percent legal (with requirements for what happens to the passengers bounced).
But the Federal Aviation Regulations leave flight crews a pretty wide margin for defining what violates the rule that “no person may assault, threaten, intimidate, or interfere with a crew member in the performance of the crew member’s duties aboard an aircraft being operated.” Often crews believe this gives them free rein to remove any passenger for almost any reason. And so you get events like those listed above, especially as crews close ranks for solidarity after an incident. But as Fortune writes it’s not exactly unchecked, or even (at least currently) at its peak:
“Airlines have broad, but not absolute, discretion under federal law to refuse to transport a passenger that it considers to be a safety risk,” says Adam Wasch, a Boca Raton-based attorney who has represented airlines and their insurers during his career.
He says federal law authorizes the refusal to transport passengers that the airline decides might be “inimical to safety” based on the facts presented. But, as some federal courts have held, the law is not a license to discriminate.
“If the evidence suggests that the airline’s decision to eject a passenger was based on racial profiling, then an intentional discrimination claim may survive a motion to dismiss but, overall, it is a tough evidentiary burden for a passenger at trial due to the broad discretion given to the airlines,” he adds.
It seems we still have a long way to go before getting to the height of the in-flight incidents epidemic in 2001, when the FAA collaborated with United Airlines to distribute a leaflet on appropriate in-flight behavior. That year, there were 305 reported unruly passenger incidents.
Of course, Fortune notes, it seems likely that not all the incidents are getting reported to the FAA. It’s up to the crew if they want to report passenger expulsions as unruly passenger incidents—a sort of catch-all that covers everything from air rage to terrorism—which leaves many wondering if we’re getting the full picture.
Either way, staring down a Trump presidency, and all the Islamophobia that is already coming with it means that the hashtag #FlyingWhileMuslim presents a legitimate problem, even if this latest high-profile incident turns out to be a stunt.
Important to know is what those escorted off the plane are entitled to. Flight crews may react in a “act first, think later” manner when it comes to expulsions, but those feeling violated and humiliated don’t have that luxury. Technically the removal is qualified as an “involuntary denied boarding” by the DOT, so compensation is required. You should receive a written statement from the airlines explaining their exact policy, but the DOT holds that those “who don’t get to fly are frequently entitled to denied boarding compensation in the form of a check or cash.”
And like cybersecurity markets, many corporations fear bad press—and no matter what our President-Elect says, escorting people off flights or asking to see the contents of their bag at the gate because they appear to be Muslim is not a good look. Delta has a particularly nasty track record on mishandling racial issues on its flights, but drawing attention to it, instead of sweeping statistics under the rug and downplaying mistreatment, will be important in the coming years. If we don’t we’re going to be in for a rough landing.