The Ninth Circuit has ruled that lack of a security clearance cannot be used as a shield for discrimination. The usual McDonnell Douglas burden shifting approach applies.
In Zeinali v. Raytheon Co., No. 09-56283 (9th Cir. Apr. 4, 2011), Hossein Zeinali, who was of Iranian descent, worked as an engineer for Raytheon for four years. Raytheon had told him that his continued employment was contingent on obtaining a “secret” level security clearance. Although Zeinali’s request for an interim clearance was rejected, Raytheon retained him while a final clearance decision was pending. During that period, he received positive feedback about his job performance. After the Department of Defense finally denied Zeinali’s request for a security clearance, Raytheon discharged him. Zeinali pointed out that two non-Iranian engineers without security clearance were retained after he was discharged.
In Brazil v. U.S. Department of the Navy, 66 F.3d 193 (9th Cir. 1995), the Ninth Circuit had ruled that federal courts could not review security clearance decisions in a Title VII discrimination action. “[T]he grant of a security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch.” However, where, as in the Zeinali case, the plaintiff does not question the judgment call to deny clearance, the Brazil reasoning does not apply. Zeinali accepted the denial of a security clearance, but argued that the security clearance was not a bona fide job requirement. Because he provided evidence that Raytheon retain non-Iranian engineers without security clearances, his claim should have survived summary judgment. That was sufficient for a reasonable factfinder to be able to find that the lack of a security clearance was a pretext for national origin discrimination.