Ekaterina Pokrovsky

And what to do if it happens to you.

Christopher Elliott / Fortune.com
May 12, 2016

This story originally appeared on fortune.com

A rash of recent passenger expulsions are setting air travelers on edge as the busy summer travel season approaches.

In April, Khairuldeen Makhzoomi, a student at the University of California Berkeley, was kicked off a Southwest Airlines flight after a passenger heard him speaking Arabic. And just last week, a University of Pennsylvania economics professor Guido Menzio was removed from an American Airlines flight and questioned by authorities after a fellow passenger became suspicious of his scribblings on a pad of paper, which turned out to be math equations.

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In both cases, neither passenger was found to be doing anything wrong. But the incidents raise several important questions. How common are these expulsions, what are passengers’ rights in these cases, and what should you do if it happens to you?

A small number of passenger expulsions are reported to the Federal Aviation Administration every year as unruly passenger incidents. In the first quarter of this year, only nine of them were reported to the federal government. But the category is not specific to terrorist threats or even passenger removals. Rather, it is a catch-all category for in-flight incidents, including air rage.

“It’s up to the crew to decide if they want to report it,” says Alison Duquette, a spokeswoman for the FAA. “They use their judgment based on our rules.”

In other words, crew members are under no obligation to report an expulsion. Indeed, given the fact that 895 million passengers flew in the United States last year, and considering the number of recent media reports on passenger expulsions, it suggests these incidents are at best being underreported to the government.

So it’s difficult to say if this is the start of a trend. Certainly, all of the ingredients are in place for a surge in reported complaints, not unlike the run-up in reports after 9/11. Tensions are higher because there’s a perception that people are being compressed into a smaller space on the plane, which has the overall effect of making passengers more irritable, particularly as temperatures rise.

What does the FAA say

Federal Aviation Regulations state that “no person may assault, threaten, intimidate, or interfere with a crew member in the performance of the crew member’s duties aboard an aircraft being operated.” Generally, flight crews interpret that as giving them the right to remove any passenger for almost any reason.

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And they have. In addition to the perceived security threats, passengers claim they have been removed for suffering peanut allergiestrying to carry an oxygen tank, and, allegedly, for being Jewish. And that’s just this month.

Typically, once a crew member makes a decision to kick a passenger off a flight, the rest of the crew closes ranks. There are no formal avenues for appeal.

Airlines can pretty much do whatever they want

“Airlines have broad, but not absolute, discretion under federal law to refuse to transport a passenger that it considers to be a safety risk,” says Adam Wasch, a Boca Raton-based attorney who has represented airlines and their insurers during his career.

He says federal law authorizes the refusal to transport passengers that the airline decides might be “inimical to safety” based on the facts presented. But, as some federal courts have held, the law is not a license to discriminate.

“If the evidence suggests that the airline’s decision to eject a passenger was based on racial profiling, then an intentional discrimination claim may survive a motion to dismiss but, overall, it is a tough evidentiary burden for a passenger at trial due to the broad discretion given to the airlines,” he adds.

It seems we still have a long way to go before getting to the height of the in-flight incidents epidemic in 2001, when the FAA collaborated with United Airlines to distribute a leaflet on appropriate in-flight behavior. That year, there were 305 reported unruly passenger incidents.

What should you do if the airline wants to kick you off a flight?

Flight crews virtually always support a decision to remove a passenger, even when they don’t have all the facts, so experts say the best advice is to comply immediately –but ask for compensation.

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Technically, a removal is considered an “involuntary denied boarding” situation. So no matter what happens next, you are entitled to compensation. If the airline arranges substitute transportation that’s scheduled to arrive at your destination between one and two hours after your original arrival time, and between one and four hours on international flights, the airline must pay you an amount equal to 200% of your one-way fare to your final destination that day, to a $650 maximum, according to the U.S. Department of Transportation.

What about an apology?

If the removal is a simple misunderstanding, then it isn’t unreasonable to expect an apology from the airline and for the carrier to take care of any expenses incurred while you wait at the airport. Wasch, the attorney, says it’s usually difficult to build a legal case against an airline because of the broad discretion under federal law given to the airlines to eject passengers.

“But there’s a customer service aspect to it as well,” he adds. “You can certainly attempt to negotiate with the airline for a flight voucher or other reasonable compensation for the misunderstanding.”

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