Can I file an EEO complaint involving my security clearance? Maybe.

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By Elisabeth Baker-Pham, Esq.

The EEOC is required to hear allegations of discrimination, including discrimination based on sexual orientation, filed by federal employees. Recently, a married gay couple filed an EEO complaint against the CIA for discrimination. The CIA dismissed the allegations without investigation, concluding that the allegations were based on a security clearance determination, which is not reviewable under EEO laws. The EEOC agreed with the CIA. As explained in more detail below, we believe these decisions to be incorrect, as the grievances do not, in fact, relate to a security clearance determination itself, but solely to the policy and determination process. credentials, which are reviewable under the EEOC Act.

The EEOC recently dismissed two cases alleging discrimination based on sexual orientation in the processing of security clearances. Kenneth M. v. CIA, EEOC Appeal No. 2022000960 (April 4, 2022); Winford M. v. CIA, EEOC Appeal No. 2022001048 (April 4, 2022). Allegations of EEO discrimination or retaliation involving security clearances are reviewable only in certain circumstances, namely when the allegation a) relates to peripheral proceedings or facts and b) does not relate to the substance of a decision of security clearance. (In fact, a favorable decision in a reviewable case will not result in an order directing an agency to grant or reinstate authorization.) This is due, in part, to the national security exception to Title VII protections. and a 1988 Supreme Court ruling in which the Court held that “a non-expert outside body” (e.g., the MSPB or the courts) cannot interfere with an agency head’s decision regarding who can access his classified information.

In both of these cases, the CIA and EEOC both dismissed the allegations before an initial investigation, saying the complaints were not reviewable because they would require “substantive review of a security clearance decision.” We do not agree.

Both cases involved the same incident – a CIA employee who was stationed overseas and who requested “remote work accommodation for the spouse” (a social benefit under CIA policy) for her husband, an employee of the National Geospatial Agency. When the CIA denied the request, both men filed complaints alleging denial of a benefit and privilege of the employee’s employment on the basis of gender (male) and sexual orientation, which resulted in two separate decisions with identical reasoning. For the sake of clarity, we will only address the complaint filed by the CIA employee (“Employee”).

According to the EEOC, the employee’s spouse underwent a background investigation, including completing an SF-86, the form used in security clearance investigations. Shortly thereafter, the NGA notified the employee’s spouse that the CIA had canceled the employee’s request, thereby denying his request for spousal remote work accommodation and a position on the premises of the employee. the Agency. NGA reported that the CIA only said that “[b]based on information provided or otherwise obtained while processing the assignee, it has been determined that we can no longer continue processing [the spouse’s application] . . .”

During the EEO’s advice, the CIA claimed that “due to [policy] they or they [were] unable to process security clearances for non-mission critical work requirements. The employee filed a complaint alleging that “the Agency denied [the] spouse’s remote work accommodation and National Geospatial Intelligence Agency assignee status because the Security Office canceled [his spouse’s] security screening process. The CIA dismissed the complaint without investigation with two explanations:

(1) “an initial review of [the employee’s spouse’s] The SF-86 form led to the determination that additional security screening would be required and that, as a matter of principle, it does not extend the additional security screening or processing of “Assignee-Detailed” applicants” and

(2) “it was not possible to examine the refusal of [the employee’s spouse’s] spouse’s work accommodation and assignee status without also considering canceling her security screening process; therefore, the Agency concluded that the complaint did not contain a claim and was subject to dismissal. »

The employee appealed the dismissals to the EEOC. The EEOC upheld the dismissal on two grounds: (1) it agreed with the CIA and concluded that it could not deal with the matter because “it involves[d] review the merits of a security clearance determination”; and (2) he concluded that he found “no compelling evidence” that “the security clearance determination was made in a discriminatory manner”. The EEOC explained that “the mere fact that some people authorized the process, while [the employee’s spouse] does not, does not indicate discrimination” and that the employee “[did] not allege, nor [did] the file establishes that one of the spouses of the comparators [the employee] quoted required additional security screening or treatment, he only speculates[d] that these people were treated differently from [his spouse] because of their gender and sexual orientation. Both findings are contrary to EEOC precedent.

First, the complaint—that “the Agency denied [the] spouse’s remote work accommodation and National Geospatial Intelligence Agency assignee status because the Security Office canceled [the employee’s spouse’s] security screening process” – is reviewable because it relates to the process and not the substance of a security determination. As the EEOC explained in its 1989 policy guidance, and as recently as 2018, “[t]The Commission is not precluded from determining whether the granting, denial or revocation of security clearances is carried out in a non-discriminatory manner. Willa B. v. Secretary of State, EEOC Appeal No. 0120162798, *4 (2018).

In this case, the complainant alleged that her employer discriminated against her when information about her was passed to her employer’s security office and when that office undertook a review of her continued eligibility and asked her to undergo a medical examination. Initially, an administrative judge dismissed the complaint, finding that the complaint required review of a security clearance decision and was therefore not reviewable. The EEOC backtracked, explaining that the incidents at issue – “the acts of transmitting information, initiating an examination and requesting a medical examination” – “go to the process, not the substance” and were therefore reviewable by the Commission. Here, the decision to terminate the review is also limited to a procedural matter and is therefore reviewable. The CIA’s explanation that it terminated the review based on a policy of not “extending additional security screening or processing of ‘assignee-detailed’ candidates” is further evidence that the complaints relate to information and decisions unrelated to a substantive clearance decision.

Second, the EEOC incorrectly upheld the dismissal on the merits. In federal sector cases such as this, the standard is not as high as that imposed on complainants in court – the Agency must accept and investigate a complaint that “allegates[s] an injury or harm to a term, condition or privilege of employment for which there is a remedy. Klein v. Office of Personnel Management, EEOC Appeal No. 0120062444, at *2 (March 16, 2007) (citing Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)). The EEOC warns against applying a higher standard in its 2014 report, “Preserving Access to the Legal System: Common Mistakes by Federal Agencies in Dismissing Discrimination Claims on Procedural Grounds” – “[t]The evidence supporting this allegation will be developed during the investigation and does not need to be referenced in the complaint or during the pre-complaint consultation. The EEOC also directly addressed this specific issue: “In dismissing the complaint for failure to report, the [Final Agency Decision] considered that a comparable employee was not in a similar situation. This reasoning goes to the merits of the complaint and is irrelevant to the procedural issue of whether the Complainant has made a justiciable claim under the Settlement. »Murray v. Dept. of Army, EEOC Call No. 01A02976, at *1 (June 21, 2000). The EEOC provided no support or explanation for its departure from precedent here.

At a minimum, complainants had the right to have their complaints investigated. Granted, even the most favorable outcome would not require the CIA to provide spousal housing, but it might require the CIA to continue to process the claim and award plaintiffs all related damages. The CIA and EEOC rulings placed plaintiffs at a significant disadvantage, forcing them to choose between pursuing an expensive civil suit in federal court or giving up fighting a ruling they felt discriminated against them on the basis of gender. – a choice that the federal sector complaint process aims to prevent.


If your security clearance has been compromised and you are unsure of your rights, you should consult a security clearance attorney immediately.

Elisabeth (Lisa) Baker-Pham is Co-Chair of Kalijarvi, Chuzi, Newman & Fitch, PC’s security clearance practice, advising applicants through the clearance process and representing federal employees and contractors whose clearances have been threatened or suspended, or whose suitability for federal employment requirements has been questioned. Lisa contributed to the 2021 edition of the cabinet “Security Clearance Law and Procedure”. She can be contacted at ebakerpham@kcnlaw.com.

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