What is an adverse employment action?
An adverse employment action constitutes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Although what constitutes an adverse employment action is inherently a fluid and fact-based consideration, a mere inconvenience or an alteration of job responsibilities will not suffice. Examples of adverse employment actions include wrongful termination, demotion, suspension, reduction in pay, denial of promotion or benefits, or any other significant negative change in the employment relationship.
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), Age in Employment Act of 1967 (“ADEA”) all require an employee to prove that the employer took an adverse action against the employee in order to prove race/color, gender, gender identity, sexual orientation, national origin, religious, disability, or age discrimination.
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Is the removal of security clearance an adverse employment action?
No – despite the fact that removing security clearance meets the technical definition of an adverse employment action. Security clearance is often required for certain positions that involve access to sensitive information or classified materials. If an employee’s security clearance is revoked, it can have significant consequences for their employment. It may restrict his/her/their ability to perform job duties effectively or limit opportunities for advancement within the organization. But while the removal of security clearance can be seen as a negative action that adversely affects the employee’s employment status, it cannot be used as an “adverse action” to prove employment.
Let’s look at the recent case, Adams v. Merit Systems Protection Board, No. 2023-1212, 2023 WL 3493689 (Fed. Cir. May 17, 2023) decided by the United States Court of Appeals for the Federal Circuit. The United States Court of Appeals for the Federal Circuit is a federal appellate court located in Washington, D.C. Established in 1982, it has nationwide jurisdiction over certain types of cases, primarily those involving intellectual property law, international trade, government contracts, and claims against the federal government. Adams was a claim against the federal government.
Charles Dereck Adams was employed as an Information Technology Specialist for the Missile Defense Agency, which falls under the Department of Defense. As you can imagine, Adam’s position required him to maintain a Top-Secret security clearance. In 2010, the government revoked Adams’ security clearance and in turn fired him because he was no longer qualified to do his job. And that is about as much information that is available about the facts of the case.
Keeping the fact as sparse as possible, the Federal Circuit Court of Appeals held:
It has long been settled that “[a] denial of a security clearance is not … an ‘adverse action,’ and by its own force is not subject to Board review,” Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988). See Hesse v. Dep’t of State, 217 F.3d 1372, 1376–77 (Fed. Cir. 2000). … In any event—and as already explained to Mr. Adams in his prior appeal—“neither this court nor the [Board] has authority to review the charge that retaliation and discrimination were the reasons for revocation of the security clearance.”
Id. at *1.
The government takes its secrets seriously. If it wants to take away Top Secret clearance away, it has the completely unfettered ability to do so.
As Maverick said in Top Gun – “It’s classified. I could tell you, but then I’d have to kill you.”
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Should I sue my job for wrongfully firing me?
If you are even asking this question, you should call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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