National Origin (American) Discrimination Claims Survive Dismissal Against Emirates

In Farah v. Emirates and Emirates Severance Plan, 21-CV-05786-LTS, 2024 WL 1374762 (S.D.N.Y. March 31, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’ claim of discrimination based on national origin (American).

From the decision:

To plead a prima facie case of intentional discrimination under Title VII, Plaintiffs must plausibly allege: (1) they are members of a protected class, (2) they were qualified for the position held, (3) they suffered an adverse employment action, and (4) that adverse action occurred under circumstances giving rise to an inference of discrimination. Brown v. Daikin Am. Inc., 756 F.3d 219, 229 (2d Cir. 2014) (citing Windham v. Time Warner, Inc., 275 F.3d 179, 187 (2d Cir. 2001)). Plaintiffs allege that they are a protected class because their national origin is American. (AC ¶ 6; see also Goyette v. DCA Advert., Inc., 828 F. Supp. 227, 232-33 (S.D.N.Y. 1993) (“There is no dispute that the plaintiffs, as person of American national origin, benefit from the protection of Title VII.”).) Next, Plaintiffs allege that they were well-qualified for their respective positions, in which each had worked for several years before termination and for which their performance was regularly deemed satisfactory. (AC ¶¶ 125, 138.) Plaintiffs have also alleged that they suffered various adverse employment actions including the denial of benefits (id. ¶ 222), lower pay (id.), and ultimately, termination (id. ¶ 135).

Finally, Plaintiffs have alleged facts sufficient to find that these actions occurred under circumstances giving rise to an inference of impermissible discriminatory motivation. See Littlejohn v. City of N.Y., 795 F.3d 297, 310-11 (2d Cir. 2015) (“[A]t the initial stage of the litigation—prior to the employer’s coming forward with the claimed reason for its action—the plaintiff does not need substantial evidence of discriminatory intent…. [She need only satisfy] a minimal burden of showing facts suggesting an inference of discriminatory motivation[.]” (emphasis in original)). Plaintiffs allege, inter alia, that one high-ranking Emirates employee stated that she preferred non-American workers and that the Call Center — which was effectively closed in June 2020 — should be closed because American workers complained too much and felt entitled. (AC ¶¶ 132-33.) They also allege that Emirates did not terminate and refuse severance benefits to any non-American workers in the United States during the pandemic layoffs, yet all American workers fired during that time were denied those benefits. (Id. ¶¶ 139-41.) Emirates also allegedly provided non-American workers travel benefits that were not offered to American workers, and “at nearly all levels” paid American workers lower salaries than non-American workers in the United States. (Id. ¶¶ 143-45.) These allegations satisfy Plaintiffs’ minimal burden at the pleading stage.

The court proceeded to reject defendants’ argument that any alleged discriminatory acts were based on plaintiff’s American citizenship – a category not protected by Title VII or the New York State Human Rights Law – rather than national origin.

It explained that “Plaintiffs have adequately alleged discriminatory comments attributing negative characteristics to ‘Americans’ and treatment that — when read in the light most favorable to their claim — plausibly suggest discrimination on the basis of their American origin,” and that “[t]o the extent that Defendants contend the discrimination was rooted in Plaintiffs’ citizenship, Plaintiffs are entitled to the opportunity to respond to that explanation, and to show that it may be pretextual, at later stages in litigation.”

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