DOT Issues Guidelines for Airport Screeners
Posted Feb 01, 2002
In the aftermath of the events of September 11, 2001, airport screeners and security personnel have faced enormous challenges. Unfortunately, there were some initial difficulties and accusations of stereotyping on the part of security personnel. November 2001 the U.S. Department of Transportation (DOT) and the Federal Aviation Administration (FAA) attempted to address these problems by issuing guidelines and Frequently Asked Questions designed to better enable the security personnel to carry out their duties and remain sensitive to a diverse population. The specific purpose of the guidance is to instruct those responsible for airport security as to when it is permissible to search a passenger. The guidance includes instruction in the spirit of "sensitivity training" with respect to garments worn by Sikhs and Muslims.
In Guidance for Screeners and Other Security Personnel, DOT addresses concerns about the treatment of individuals who are, or are perceived to be, of Arab, Middle Eastern, or South Asian descent and/or Muslim. The document specifically points to a number of "improper or insensitive searches" of Sikh- and ArabAmericans. DOT reminds their personnel that it is illegal for an air carrier or its employees to discriminate on the basis of race, color, national origin, religion, sex, or ancestry. The guidance reminds the screeners that, while additional questioning and inspection is required at times, the test to be used is a "but for" test. Screeners are to ask themselves, "But for a person's perceived race, ethnic heritage, or religious orientation, would I have subjected this individual to additional safety or security scrutiny." They are directed that if the answer is "no" then the search is likely to be in violation of the law.
The guidance addresses clothing and customs of various religious sects. For example, it specifically addresses the items worn by members of the Sikh religion, the turban and kirpan (ceremonial religious sword). The screeners are informed that removal of the turban is considered to be one of the most invasive acts imaginable and that the turban cannot easily be removed and retied. Therefore, Sikhs are not to be asked to remove their turbans, unless there is some other substantial suspicion. According to DOT, asking a Sikh to remove his turban in the absence of similar requirements of clothing removal for other passengers is "disparate treatment," and therefore improper. The memo advises that if an inspection of a Sikh's hair and/or turban is appropriate and required based upon the above criteria, then the individual should be provided a choice of either public or private inspection. DOT informs its employees that public searches of such individuals may be humiliating or violate religious tenets.
With respect to the Sikh ceremonial kirpan or sword, the FAA requirements forbid all persons from carrying any knife onto the aircraft. The kirpan is subject to these rules, notwithstanding its religious significance. An individual with a kirpan or religious sword is to be told that the sword must be placed in the checked luggage. Otherwise, the kirpan can be confiscated, as it cannot be carried onto the aircraft with the passenger.
In addition to turbans, the DOT addresses the issue of the inspection of women who cover their hair or wear veils. The memo specifically addresses the problem that arises when a veiled woman shows photo identification and the wearing of the veil makes it impossible to verify the woman's identity. Further investigation is justified in this instance and the memo directs security personnel to have the woman's face checked in private, by female security personnel whenever possible.
The memo reminds Inspectors that discrimination based upon ethnic or religious dress or based upon the speaking of a foreign language or speaking with an accent is prohibited.
The "Answers to Frequently Asked Questions Concerning Air Travel of People Who Are or May Appear to Be of Arab, Middle Eastern or South Asian Descent and/or Muslim or Sikh" is available on the DOT WebSite. The page includes additional links and information with respect to procedures in the event an individual feels that his rights may have been violated. The "Answers" fact sheet provides helpful information for travelers, in keeping with the guidelines for inspection provided to screeners. This fact sheet is a useful guide in what to expect during airport inspections and when additional questioning and inspection is appropriate. The advisement indicates some passengers will be searched based upon their being identified by the Computer Assisted Passenger Prescreening System (CAPPS). The CAPPS selection criteria, which also allows for some individuals to be selected at random by a computer, have been reviewed by the U.S. Department of Justice to ensure that the selection methods are non-discriminatory. This CAPPS search will include inspection of carry-on items and of the person by means of a hand-held metal detector and a pat-down search. There may be a more extensive search if the initial inspection indicates that it is appropriate and necessary.
This fact sheet and the guidance for screeners should provide all concerned with a greater understanding of the process and the legal criteria. We applaud the FAA's strong stand against discrimination while safeguarding innocent lives. © The Law Office of Sheela Murthy, P.C.
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