The case of the day is Mohammad v. General Consulate of the State of Kuwait (9th Cir. 2022). Rasha Mohammad, a Syrian national, was an administrative assistant at Kuwait’s consulate in Los Angeles. She alleged that the consulate harassed her and discriminated against her on the basis of her sex, religion, and nationality and that it violated wage and hour laws. She sued in the Los Angeles Superior Court. The Consulate removed the case and moved to dismiss on grounds of foreign sovereign immunity. The question was whether the commercial activity exception to sovereign immunity applied.
Longtime readers will know that the issue is interesting to me: it was the issue in Merlini v. Canada 926 F.3d 21 (1st Cir. 2019), the First Circuit’s decision in favor of a worker injured on the job at a consulate who sued, successfully, under Massachusetts’s law imposing strict liability on employers who fail to purchase workers’ compensation insurance. Merlini was unlike today’s case and most of the cases in the genre because of the worker’s comp. context. Today’s case, which involves a claim of workplace mistreatment, is more typical. The cases focus on the nature of the employee’s job. Is she a civil servant, or someone with governmental, official, or military responsibilities? Or instead, is she doing the same kind of job she could do for any private business? In cases based on an employee’s employment, the answer to this question determines whether the employment is a commercial activity. The foreign sovereign will typically say the purpose of the employee’s work (say, a trade representative, or a commercial officer), but the text of the FSIA itself tells us to look at the nature of the activity, not its purpose.
In today’s case, the Kuwaiti government focused on some of the confidential material Mohammad was exposed to. (The Canadian government made the same point at the en banc and cert. stages in Merlini). But the court reasoned that that approach “appears to conflate the nature and purpose of the plaintiff’s duties and to confuse her prescribed duties with how the Consulate chose to utilize her skills. … A person hired for a clerical position does not become a diplomat or civil servant because the sovereign chooses to expose that person to confidential matters.”
I think this is basically right. If you’re hired to take notes, type letters, etc., then your employment is the same kind of employment you might have at any private company, where you might deal with company secrets, sensitive. discussions, and so forth. There might be some limit to this principle, but it doesn’t seem that Kuwait made the case for it here.