Friday, February 26, 2016

Bearing Arms For A Foreign Country

Bearing arms for a foreign country is an effective method to be denied a security clearance under Guideline C Foreign Preference. The Adjudicative Guidelines for Determining Access to Classified Information are used to determine eligibility for a security clearance. The government has identified thirteen categories of concerns that argue against granting a clearance and provided, as well, suggestions of mitigating factors relevant to a weighing of the concerns. Guideline C Foreign Preference addresses concerns that are raised when an applicant for a security clearance has a record suggestive of a deeper loyalty to a foreign power than to the United States.

A DOHA appeal panel explained the concern raised by foreign military service this way:

A person who is willing to bear arms for a country demonstrates a willingness to risk life and limb for that country. Such a willingness is strong evidence of a profound, deeply personal commitment to the interests and welfare of that country. A person who is willing to bear arms for a country may be willing to perform other acts (which do not entail risk to life and limb) to advance the interests and welfare of that country and its armed forces. Accordingly, a willingness to bear arms for a foreign country raises serious security concerns about an applicant seeking to be granted access to U.S. classified information.

ISCR Case No. 00-0317 (App. Bd.  3-29-2002). Under Adjudicative Guideline C Foreign Preference, a concern is raised by the “exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This includes, but is not limited to (2) military service or a willingness to bear arms for a foreign country.” ISCR Case No. 11-06577 at 6 quoting Adjudicative Guidelines ¶ 10(a). The only factor that might mitigate service in a foreign military is if this service occurred when the person was a child or before he or she  became a U.S. citizen. See Adjudicative Guidelines ¶ 11(c). Thus U.S. citizens who choose to serve in the military of a foreign power are unlikely later to be able to obtain a clearance because of concerns raised under Guideline C. Those who have foreign citizenship and fulfill a mandatory military obligation in that country before coming to the United States have a better chance of arguing that their bearing arms for a foreign power does not indicate a present preference for the foreign power against the interests of the United States.

Because he had served in the Australian Army, a U.S. citizen and former U.S. Army officer was denied a clearance. ISCR Case No. 08-05869 (April 24, 2009) (App. Bd. July 25, 2009). The AJ below had found significant the fact that the US citizen had moved to Australia only to be with his Australian wife and children, and he had joined the Australian military only when he could find no other employment. He became an Australian citizen only because he was required to do so in order to take the job with the Australian military. Returning to the US some years later, he renounced his Australian citizenship and surrendered its passport in order to apply for a clearance. The actions were sufficient to mitigate, in the eyes of the AJ below, concerns raised by his military service for a foreign government under Guideline C. The Appeal panel, however, reversed and denied the clearance, determining that taking up arms for a foreign government outweighed the later renunciation of the applicant’s connections with the foreign country. The basis of their decision was the “voluntary decision by a U.S. citizen to serve in another country’s military.”  Id. at p. 5.

In a case with a similar result, a young man was denied a clearance under Guideline C because he had previously voluntarily served in the Israeli Defense Force (IDF). ISCR Case No. 10-02902 (App. Bd. May 16, 2011). A citizen of the United States (and not of Israel), he studied in Israel for part of high school and college, taking steps to enlist in the IDF while still in college. He served for fourteen and one-half months, carrying a weapon, charged with protecting the people of Israel. Id. at p. 2. Although the young man declined the opportunity to apply for Israeli citizenship and returned to the United States soon after completing his term of service for the IDF, describing himself as “tired of Israel” and not liking the culture, nevertheless, the AJ concluded that his conduct serving in the Israeli military outweighed his assertions that “he did not like it there [in Israel].” Id. at p. 6. Of particular note to the AJ was the fact that the applicant “did not volunteer to serve in the United States military, he volunteered to protect the people of Israel.” Id. The Appeals panel, although rejecting the lower decision’s conclusions that the young man had shown a preference for Israel based upon schooling and residency abroad, nevertheless affirmed the AJ’s denial of a clearance based upon the applicant’s willing service in the foreign military. “From a security standpoint, voluntarily serving in the military of a foreign country is a serious matter.” ISCR Case No. 10-02902, appeal, p. 3.

Bearing arms for a foreign country is not, however, an absolute bar to being granted a clearance. Speaking of another  U. S. citizen, a young man who was raised in Israel and decided on his parents’ urging to serve in the IDF rather than the U.S. Navy, the administrative judge explained, “Applicant’s IDF service is not a permanent bar from being granted a security clearance; it only fortifies the burdens he has to face in mitigating security concerns related to foreign preference.” ISCR Case No. 11-06577 at p. 7. The court did not find that the young man had sufficiently mitigated the concerns and denied the clearance, but it offered this encouragement: “Applicant is in the process of defining himself both as an adult and as an American with a demonstrably undivided preference for only the United States.  However . . . his . . . time in the United States as a full-time resident has been too brief for him to develop a demonstrably notable commitment to the United States that can overcome the preference shown in enlisting in the IDF.” Id.

American citizens who serve in a foreign military have a sizeable burden to overcome foreign preference concerns under Guideline C. Dual citizens, who simply comply with a foreign country’s laws to perform military service may find it easier to mitigate this concern, but their bearing arms for a foreign government will, nevertheless, present a heavy burden they must overcome under Guideline C. “Dual citizenship concerns necessarily entail allegiance assessments and invite critical considerations over acts indicating a preference or not for the interests of the foreign country over the interests of the US.” ISCR Case No. 00-0317, p. 5.

In the case of a dual citizen of Israel and the U.S., the Appeal Panel reversed a lower court’s grant of a clearance, persuaded that the applicant’s mandatory service in the IDF should be compared to the U.S. citizen who chose to serve in the Australian Army for family reasons. ISCR Case No. 10-04641 (App. Bd. September. 24, 2013) (relying on ISCR Case No. 08-05869 (App. Bd. July 24, 2009) supra). The applicant who had served in the military of Israel “had a ‘heavy burden’ to mitigate the Guideline C concerns.” Id. This he failed to do. Particularly harmful to his argument was his refusal, in response to an interrogatory promulgated by Department Counsel, to “unequivocally abjure a continued willingness to bear arms for Israel.” Id.

Hypotheticals asking a dual citizen, variously, whether he would bear arms for the United States against the foreign country of birth, or whether he would bear arms for that country against the United States, are regularly sent by Department Counsel in interrogatories and entered in evidence considered in making a security clearance decision.  In one case, an applicant’s response to the hypotheticals, that he would neither bear arms for the United States against his country of birth, nor for his country of birth against the United States, but would remain neutral, was found to be particularly troubling to the Appeal Board.  When coupled with the applicant’s earlier mandatory service in a foreign military, the Board concluded that, “[e]quivocal preferences with respect to the United States or a foreign country raise serious security concerns under the ‘clearly consistent with the national interest’ standard.”  Id at p. 4.  Clearance was denied. But see ISCR Case No. 08-02864, p. 13 (App. Bd. December 29, 2009) (denying clearance on other grounds). Foreign military service, when coupled with equivocation as to a willingness to bear arms for the US, creates a substantial burden for security clearance applicants to overcome under Guideline C.

Written by Mary Kuntz


Friday, February 19, 2016

Greater Scrutiny of Pregnancy Bias: The Question Should NOT Be Choosing Between A Job And Pregnancy

The Pregnancy Discrimination Act of 1978 (PDA) amended Title VII, the basic civil rights law against workplace bias, to prohibit sex discrimination on the basis of pregnancy. The PDA asserts: (1) that pregnancy bias is a form of discrimination based on sex and (2) that female workers who become pregnant must be treated the same as other workers “not so affected but similar in their ability or inability to work.”

On March 25, 2015, the U.S. Supreme Court, in Young v.United States, sought to clarify the second section of the PDA. Specifically, the Supreme Court held that, even if an employer’s policies are not intended to discriminate against women on the basis of pregnancy, it may still violate the PDA if “the employer’s policies impose a significant burden on pregnant workers, and . . . the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden[.]”

In support of its holding, the Supreme Court fashioned a three-part framework for showing that an employer’s refusal to accommodate was likely the result of intentional bias. First, the employee must offer proof that: she is in the protected group (i.e., those who can become pregnant); she asked for a workplace accommodation when she could no longer complete her normal duties; the employer refused to do so; and the employer provided an accommodation for others who are just as limited in their ability, or unable, to do their work temporarily. Second, the employer must show that its workplace policy was not biased against pregnant employees, but that it had a neutral, business-related reason for its policy. Third, the employee must show that, even if the employer’s policy was not intended to be biased, the workplace policy puts a “significant burden” on pregnant employees, and the reason for the policy is “not sufficiently strong” to justify that burden. Thus, the result in Young is a sort of hybrid analysis: judging intentional bias on the one hand and negative impact on female employees on the other.

Following the Supreme Court’s decision in Young, on June 25, 2015, the Equal Employment Opportunity Commission (EEOC) issued guidance confirming that failure to accommodate pregnant employees may expose employers to Americans with Disabilities Act of 1990 (ADA) claims based on temporary disabilities caused by pregnancy. Notably, the ADA prohibits discrimination based on “disability,” a definition required by the ADA Amendments Act of 2008 (ADAAA) to be “interpreted in favor of broad coverage of individuals.” The EEOC has previously issued guidance stating that “[d]isabilities caused or contributed to by pregnancy . . . [are], for all job-related purposes, [to] be treated the same as disabilities caused or contributed to by other medical conditions[.]” Thus, the EEOC interprets the ADAAA’s expanded definition of disability to include pregnancy. The EEOC’s June 2015 guidance will likely result in greater employer oversight of how they accommodate pregnant women. This guidance also emphasizes that employers may be subject to disparate impact claims to the extent that an employer policy, such as eligibility for and/or restrictions on leave, disproportionately impacts pregnant workers.

Written by: Aaron Herreras

You may view our other blog posts on pregnancy discrimination at:

Wednesday, February 10, 2016

NELA Amicus to MSPB seeks protection for federal job applicants

In 2002, Mark Abernathy worked for a government contractor at the U.S. Army’s Europe Regional Medical Command (ERMC) in Germany. He became concerned that managers were mismanaging funds appropriated by Congress by using the funds to buy video teleconference (VTC) equipment. He made a report to the Army’s Inspector General (IG) who eventually decided that there was no mismanagement.

In 2004, Mr. Abernathy applied for a Health Systems Specialist position at ERMC and was not selected. He filed a whistleblower complaint claiming that his non-selection was on account of his 2002 IG complaint.

The Army claimed that the Whistleblower Protection Act did not apply because Mr. Abernathy made his IG complaint while he was still employed by a contractor and before he had applied for any direct federal employment. An Administrative Judge of the Merit Systems Protection Board (MSPB) agreed and made an Initial Decision to dismiss Mr. Abernathy’s case.

Mr. Abernathy appealed to the full MSPB. Last month, the MSPB announced in the Federal Register that it would accept amicus briefs from interested parties on the issue of whether disclosures are protected when made before the whistleblower applies for federal employment.

On behalf of the National Employment Lawyers Association (NELA), I joined with attorneys Andrew Permutter, Alan Kabat, Kathryn Piscitelli and Matt Koski to submit an amicus brief to MSPB on behalf of Mr. Abernathy.

Our brief first notes that the dismissal “is contrary to the plain text of the WPA, which explicitly protects ‘applicants,’ including those who have never been federal employees.” We also cited to two prior cases in which the MSPB had held that whistleblowers were protected for disclosures they made before applying for federal employment. You can find the cases here and here.

More fundamentally, the very purpose of protecting applicants is to encourage everyone to make disclosures when they have a reasonable belief about waste, fraud, and violations of law. Requiring whistleblowers to apply for a federal job before they blow the whistle would undercut that purpose by discouraging other employees from making disclosures.

While employee tips account for 49% of discovered frauds, law enforcement detects only 1.9% of frauds.The federal government risks losing its most valuable source of tips by denying protections to those who have to risk their careers to speak up for taxpayers. We argued:
The Initial Decision below unjustifiably tears a gaping hole in the web of federal whistleblower protections. ... This holding is inconsistent with the remedial purposes of both laws and would discourage both federal and private sector employees from coming forward with valuable information.
In 2012, Congress strengthened the law by passing the Whistleblower Protection Enhancement Act (WPEA). Congress explained that it was wrong for the MSPB and courts to create exceptions to the whistleblower protections when the law clearly protects “any disclosure.” Our brief concludes:
The Board’s application of the explicit language of the WPA will strengthen this web, and will reaffirm its clear precedent on this issue. The Initial Decision, if undisturbed, would punch a wide hole in this web, and return this Board to the type of judicial undercutting of WPA coverage that the WPEA sought to end forever.
The NELA amicus brief is available here.

Written by Richard Renner.

Tuesday, February 2, 2016

We’ve Come A Long Way, But There’s Still A Long Road Ahead: New Rules To Address The Gender Pay Gap

On January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act (Fair Pay Act), making it easier for employees to effectively challenge discriminatory pay. After the Supreme Court’s 2007 holding in Ledbetter v. Goodyear Tire & Rubber Co. that unequal pay claims must be filed within 180 days of an employer’s decision to pay a worker less—even if the employee did not learn of the unfair pay until years after the discrimination began, the Fair Pay Act amended the Civil Rights Act of 1964 to provide that unfair pay complaints may be filed within 180 days of each discriminatory paycheck.

On the seventh anniversary of the Fair Pay Act, the Obama administration announced executive action that would require employers, including federal contractors, with more than 100 employees to report summary pay data broken down by race, gender, and ethnicity. In conjunction with the announcement, on January 29, 2016, the Equal Employment Opportunity Commission (EEOC) issued a proposed regulation revising its longstanding Employer Information Report (EEO-1). For the past 50 years, EEO-1 data has provided the federal government with private sector workforce profiles by race, ethnicity, sex, and job category. The new regulation would add aggregate data on pay ranges and hours worked, beginning with employers’ September 2017 EEO-1. The EEOC’s hope is that this new data “will assist the agency in identifying possible pay discrimination and assist employers in promoting equal pay in their workplaces.”

This proposed regulation serves to encourage and facilitate greater voluntary compliance by employers with existing federal pay laws, e.g., evaluating how they are actually paying their employees. Surprisingly or not, the gender wage gap in the U.S. is 2.5 percentage points larger than the average among industrialized countries, with women in full-time jobs earning 79 cents for every dollar a man earns. According to the EEOC's Small Business Fact Sheet, “Although some of these pay disparities may be explained by differences in education, career, or experiences, even when these factors are taken into account, significant unexplained racial, ethnic, and gender-based disparities remain.” Providing greater insight into these pay disparities across industries and occupations will improve federal efforts to combat discrimination; greater transparency, per the EEOC, “will help to root out discrimination and reduce the gender pay gap.”

President Obama also renewed his call to Congress to take up and pass the Paycheck Fairness Act: proposed legislation to update the Equal Pay Act of 1963, which made sex-based wage discrimination illegal. You can read the Senate and House Reports here and here. Specifically, the Paycheck Fairness Act would ban employers from retaliating against employees who share salary information with each other, impose harsher penalties for pay discrimination, and require employers to show that wage gaps between men and women are based on factors other than gender.

Written by Aaron Herreras