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Discrimination irrelevant if basic qualification is missing

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in Human Resources

It may sound logical and reasonable, but it took a federal appeals court to decide it once and for all: An individual can’t sue for discrimination and win when it’s crystal clear he lacks an essential job requirement and therefore isn’t qualified for the job.

Applicants or employees who lack objective minimum job requirements—e.g., a necessary professional license or credential—can’t win Title VII discrimination claims.

Recent case: Wahih Makky immigrated to the United States from Egypt 30 years ago, became a U.S. citizen, married an American woman and earned a graduate degree.

For years, he worked in academia and as a researcher for the Federal Aviation Administration, developing technology to detect and prevent explosives from being detonated aboard commercial planes and trains. All that time, Makky held a high security clearance.

After the Sept. 11 terrorist attacks, Makky claimed his supervisors began asking questions about his background. He alleged others said it had been a mistake for the agency to hire anyone of Arab descent.

Meanwhile, Makky’s security clearance was up for a routine review. This time, his clearance was suspended pending further investigation and he was placed on leave. Eventually, he lost his internal clearance appeals—and his job.

He sued, alleging national-origin discrimination. He wanted a chance to prove that his suspension was at least partly motivated by discrimination, not just his pulled security clearance.

The 3rd Circuit Court of Appeals disagreed. It ruled that, when there is unchallenged objective evidence that the employee does not possess the minimal qualifications for the position he wants or holds, there is no Title VII case. In Makky’s situation, everyone agreed he did not have a clearance and that he could not perform his job without a clearance. (Makky v. Chertoff, No. 07-3271, 3rd Cir., 2008)

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