Chief Judge Wilkinson
Appellant Nyla Butters brought suit against her employer, Vance International, claiming that Vance discriminated against her on the basis of gender. The district court held that Vance was entitled to immunity from Butters’ suit under the Foreign Sovereign Immunities Act because Vance’s client, the Kingdom of Saudi Arabia, was responsible for Butters not being promoted.
I Vance International, headquartered in Oakton, Virginia, provides security services to corporations and foreign sovereigns. In October 1994, Saudi Arabia hired Vance to augment the security provided to Princess Anud, a wife of Saudi King Fhad, while the Princess was undergoing medical treatments in California. The Saudi military was responsible for protecting Princess Anud. The Princess’ residence in Bel Air, California, was referred to as “Gold.” Saudi Arabian Colonel Mohammed Al-Ajiji supervised all security at the site—three Saudi military officers and the Vance agents. . . . The Saudi government paid Vance for its services. In August 1995, Vance hired Nyla Butters as a part-time, at-will security agent. From 1995 until April 14, 1998 . . . [on] several occasions, Butters temporarily worked in Gold’s command post. In early April 1998, Vance supervisors at Gold recommended that Butters serve a full rotation in the command post. . . . Gregg Hall, the Vance detail leader, spoke with Mohammed. Colonel Mohammed denied Hall’s request for Butters to serve a rotation in the command post. Colonel Mohammed told Hall that such an assignment was unacceptable under Islamic law, and Saudis would consider it inappropriate for their officers to spend long periods of time in a command post with a woman present. This in turn could have political ramifications at home for the Saudi royal family. Mohammed also informed Hall that the Princess and her contingent wanted to speak only to male officers when they called the command post. In total, three Vance supervisors recommended Butters for the assignment. Saudi military officers denied every request.
On May 28, 1998, Butters filed a charge of gender discrimination with the California Department of Fair Employment and Housing. On October 15, 1998, Butters filed suit . . . for discriminatory constructive termination, retaliatory constructive termination, and wrongful constructive termination in violation of public policy under California’s Fair Employment and Housing Act. Vance filed a motion for summary judgment with respect to these counts. On July 30, 1999, the district court granted Vance’s motion, finding Vance immune from Butters’ suit under the Foreign Sovereign Immunities Act (FSIA). . . . The district court held that derivative FSIA immunity attached to Vance because it was “acting under the direct military orders of Colonel Mohammed when [it] did not allow the plaintiff to work a full rotation in the command center.” Butters appeals.
II Butters first contends that FSIA immunity does not attach to Vance because the action here was a “commercial activity.” . . .
The FSIA defines “commercial activity” as “a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” . . . The Court elaborated on the distinction: “[A] state engages in commercial activity . . . where it exercises ‘only those powers that can also be exercised by private citizens,’ as distinct from those ‘powers peculiar to sovereigns.’”
IV Any type of governmental immunity reflects a trade-off between the possibility that an official’s wrongdoing will remain unpunished and the risk that government functions will be impaired. FSIA immunity presupposes a tolerance for the sovereign decisions of other countries that may reflect legal norms and cultural values quite different from our own. Here Saudi Arabia made a decision to protect a member of its royal family in a manner consistent with Islamic law and custom. The Act requires not that we approve of the diverse cultural or political motivations that may underlie another sovereign’s acts, but that we respect them. We thus affirm the judgment.
1. Why did the court hold that Vance, a U.S. corporation, could avoid Butters’s claim of discrimination based on a claim of sovereign immunity? Why did Butters argue that sovereign immunity should not apply?
2. How do you feel about the end result of this decision? Did Butters suffer discrimination? Explain.