[JURIST] The US Court of Appeals for the Third Circuit [official website] ruled [decision, PDF] Thursday that in a mixed-motive employment discrimination case, the plaintiff must show he or she objectively met minimum requirements for the job. The issue had not been addressed by other circuits, and came before the court in a lawsuit by former Transportation Security Administration (TSA) [official website] employee Wagih Makky, who alleged that he had been inappropriately placed on unpaid administrative leave because of his status as an Egyptian Muslim, in violation of Title VII of the Civil Rights Act of 1964 [statute text]. Makky had designed security protocols for TSA but was placed on unpaid administrative leave in 2005 after an administrative board had denied his renewal request for top secret security clearance [DSS backgrounder], a prerequisite for his position. The court held that because he lacked this necessary qualification, it could not address whether or not there was another, discriminatory reason for his dismissal:
Makky does not dispute that his position required him to have access to National Security Information. The lack of a security clearance in a position such as Makkys is akin to the lack of a license in a position such as a medical doctor because without a security clearance Makkys subjective qualifications are irrelevant. A security clearance is the minimum requirement needed to hold Makkys position. Thus, as of January 2005, when Makkys clearance was suspended, he was not qualified on the most basic level to perform his job.The court held that it did not have jurisdiction to review the underlying denial of his clearance, and that he now lacked the adequate clearance to obtain confidential documents relating to the administrative board's decision.
The TSA board had said that one of the reasons for the denial of Makky's clearance renewal was his association with suspicious persons, even though he said he had declared no new acquaintances in Egypt since he was originally granted the clearance. TSA has been criticized [TSA redress site] for the criteria used to determine who is associated with suspicious activity, and the American Civil Liberties Union (ACLU) [advocacy website] reported [press release; JURIST report] in July that the country's terrorism watch list includes more than one million names, which government officials say represent approximately 400,000 people [Washington Times report] because of the inclusion of aliases.