The case of the day is Youssef v. Embassy of the UAE (D.D.C. 2021). Abla Youssef was a secretary at the United Arab Emirates’ embassy in Washington. She was terminated when she reached 67 years old, allegedly because she had reached the customary retirement age in the UAE. She sued, alleging that the embassy had violated the Age Discrimination in Employment Act. The embassy moved to dismiss, asserting foreign sovereign immunity.
In some ways, the case is just like my case from last year, Merlini v. Canada. There, too, the employee was a secretary who did the same job she might have done in any private business, and she could not be considered a civil servant. The court applied the El-Hadad analysis and concluded that the employee’s employment was commercial, not diplomatic or civil service and that her work was non-governmental. Because the claim was based on the employment and the termination of the employment, and because the employment was commercial, the commercial activity exception to foreign sovereign immunity applied.
I want to point out a way in which Youssef’s claim was weaker than Merlini’s. In Merlini, the claim was that Canada had failed to purchase workers’ compensation insurance for its locally-engaged staff and that therefore, under Massachusetts law, it was strictly liable for Merlini’s workplace injury. There could be no real argument that the case was based on Canada’s policy decision to use its own workers’ compensation scheme rather than follow Massachusetts law, because under Massachusetts law, the claim would have been precisely the same no matter what reason Canada gave for its failure. As I wrote in the brief in opposition to Canada’s cert. petition last year: “Facts and circumstances that a plaintiff does not need to plead or prove cannot possibly be part of the gravamen of her case.” But in Youssef, the plaintiff did have to plead and prove the reasons why the UAE did what it did, and so there is more room for the foreign sovereign in her case to argue that the case was not based on the employment, but on the UAE’s policy decisions. Still, the UAE cannot in my view overcome the plain text of the FSIA, which says that you judge the commercial nature of an act or omission with reference to its nature, not its purpose.