EEOC holds security clearance is an affirmative defense for agency. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination and harassment based on race (African American), sex (female), parental status, and reprisal for prior protected activity. Several of Complainant’s claims were dismissed by the Agency for failure to state a claim on the basis of lack of jurisdiction. Complainant appealed said dismissals.

On appeal the EEOC’s Office of Federal Operations (OFO) stated that while the commission does not have jurisdiction to review a security clearance decision, but such jurisdictional arguments must be raised as an affirmative defense to a charge of discrimination. This means that an agency must raise it and prove the challenged employment decision was made because of national security requirements imposed by statute or Executive Order. There was no documentation in the record showing the position duties Complainant performed were subject to any requirement imposed in the interest of the national security, and as such IRS made determination on “suitability”, not a “security clearance.” Therefore the OFO modified the dismissals and remanded them back to the Agency.

Amina W. v. Dep’t of the Treasury, EEOC Appeal Nos. 2020004360 and 2020004343 (Nov. 4, 2020)