National security trumps national-Origin claims

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in Discrimination and Harassment,Human Resources

Even in a post-Sept. 11, 2001, environment, employers know they can’t use national origin or religion as an excuse to discharge or refuse to hire employees.

But if you are a government contractor whose employees need security clearances, don’t worry about possible national-origin or religious discrimination. Just make sure your employees’ job descriptions specify the type of clearance they require.

That’s because an employee discharged after losing a required security clearance can’t show he or she is a qualified employee. That’s true even if the security-clearance review was prompted by a supervisor who may have harbored prejudice or preconceptions about national loyalties.

Recent case: Wagih Makky, born in Egypt but now a U.S. citizen, had worked as a Federal Aviation Administration (FAA) engineer since 1990. His job required a security clearance, which he had no trouble maintaining before Sept. 2001.

Then the FAA became part of the newly created Department of Homeland Security, and a new supervisor arrived on the scene. He singled out Makky to get an updated security clearance. When officials running the clearance said there would be a delay, the FAA suspended Makky with pay.

Eventually, the FAA revoked Makky’s clearance and fired him. He sued, alleging he had been singled out and fired because of his national origin and religion. But the federal court hearing his case dismissed it.

The court reasoned that if a security clearance was a job requirement, then Makky couldn’t show he was qualified for the job—the first step in a discrimination lawsuit. (Makky v. Chertoff, No. 06-4329, DC NJ, 2007)

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