Diplomatic Immunity May Bar Lawsuits for Sexual Harassment Against Consular Officials in New York City

New York City, as the headquarters of the United Nations (UN), hosts diplomats and diplomatic staff from all over the world. Diplomatic officials are afforded certain accommodations, as many Manhattan residents know, through the doctrine of diplomatic immunity. People acting in an official diplomatic or consular capacity on behalf of their country’s government may not be subjected to civil, criminal, or administrative proceedings in the host country, with some exceptions. Under the doctrine of sovereign immunity, governments, heads of state, and certain other officials are generally immune from civil lawsuits and other proceedings. Multiple stories have surfaced in recent years of diplomatic and consular officials accused of sexual harassment and other misconduct. Courts have found, in some cases, that diplomatic immunity does not protect officials from civil lawsuits under such circumstances. Sovereign immunity, however, appears to remain a barrier to suit.

A recent report by Business Standard, an Indian news publication, found at least three incidents since 2010 involving allegations of sexual harassment and labor law violations by domestic workers against Indian diplomats. The “common thread” linking these incidents, the report stated, was the United States and its laws protecting workers. One case involved a housekeeper’s civil lawsuit accusing an Indian consular official of unlawful employment practices and sexual harassment. Bhardwaj v. Dayal, et al, No. 1:11-cv-04170, complaint (S.D.N.Y., Jun. 20, 2011). The plaintiff removed the sexual harassment allegations from an amended complaint, and the parties settled the suit in mid-2012.

In numerous New York cases, courts have rejected claims of diplomatic immunity in lawsuits related to sexual harassment. Perhaps the most famous recent case involving this defense was not a sexual harassment lawsuit, but rather a civil lawsuit arising from an alleged sexual assault, Diallo v. Strauss-Kahn, No. 207065-2011, complaint (N.Y. Sup. Ct., Bronx Co., Aug. 8, 2011). The court held that the defendant, the former head of the International Monetary Fund (IMF), lost any claim to immunity when he resigned his position with the IMF. It also noted that immunity generally might not apply to acts that are unrelated to official consular duties. That case was settled in late 2012.

The Second Circuit Court of Appeals rejected a claim of diplomatic immunity in a lawsuit brought by a domestic worker against a Kuwaiti diplomat and his wife, which alleged sexual harassment, sexual abuse, and other forms of mistreatment. Swarna v. Al-Awadi, 622 F.3d 123 (2nd Cir. 2010). A Manhattan federal district court ruled that a former employee of the Saudi diplomatic mission in New York City could sue for sex discrimination and harassment under an exception to diplomatic immunity. Mukaddam v. Permanent Mission of Saudi Arabia, 111 F.Supp. 2d 457 (S.D.N.Y. 2000); 136 F.Supp.2d 257 (S.D.N.Y. 2001).

Courts have generally found that sovereign immunity, unlike diplomatic immunity, continues to apply in these types of cases. In the Swarna case, the court found that the State of Kuwait was immune from liability. The Second Circuit affirmed the dismissal of a sexual harassment and sex discrimination case against the UN itself, citing several forms of immunity. Brzak v. United Nations, 597 F.3d 107 (2nd Cir. 2010). The court reached a similar conclusion in the case of an employee of the government of Tokyo, Japan, who alleged sexual harassment by her employer while she was assigned to an office in New York. Kato v. Ishihara, 360 F.3d 106 (2nd Cir. 2004).

If you have been the victim of sexual harassment or other unlawful employment practices, a skilled and experienced sexual harassment attorney can help you understand your rights and advocate for your interests. At Phillips & Associates, we advocate for employees and job seekers in the greater New York City area. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to see how we can help you.

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