Can an SF86 Be Used to Discriminate Against an Applicant?

Security Clearance

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While most jobs only require a successful application or interview to get started, national security positions often require something else – a completed SF86. You may be asked to fill out the application by an employer even before you  receive a final offer. But if negative information is included on your application, does that mean you’ll get punted from a position, even before you get a determination?

That’s the question recently asked over at the ClearanceJobsBlog Discussions site. A poster comments:

At first I questioned the updated SF86 request indicating that my clearance was inactive in JPAS but I completed, via e-QIP, anyway so as not to cause a delay. Once my paperwork was completed (about 1 day) things fell silent. 1 week after completing the paperwork I emailed HR asking if they were able to meet the tentative start date, 15 days away. They replied that my paperwork has not been completed/certified. Several days later I received an email from HR, without explanation, indicating that management had rescinded the tentative offer.

The applicant notes he had disclosed prior drug use on his SF86. An issue he thinks would have been mitigated in adjudication. Is it okay for the federal government (for this civil service position) to prescreen applicants based on the SF86?

The federal government has wide leeway in national security positions – the usual employment laws don’t apply. It is possible the federal government may use an SF86 as an employment screening tool in hiring decisions. ClearanceJobsBlog moderator Marko Hakamaa writes about federal suitability in a separate thread:

“Some agencies require for you to provide everywhere you have lived, worked or went to school in the last 3 years and they will run a quick check of references, police, and courts. Or you may have to submit an SF-85 or SF-85P along with an OF-306 for review,” he writes.

It Can Be Done, but probably often isn’t

Federal suitability criteria may be beyond what’s on the SF86. That means it’s possible a government agency pre-screens candidates for drug use that may be successfully adjudicated in a final clearance determination. But that doesn’t mean most employers are reading through your SF86, looking for a reason to deny the job. Most agencies are up front about their suitability criteria – so don’t be afraid to ask.

In addition, most defense contractors, who often have human resources departments focused on both government and private sector employment policies – are downright timid when it comes to any perception of discriminatory hiring practices. Keep in mind the government has wide leeway when it comes to making employment decisions for national security positions. The SF86 may still be used to screen for recent drug use or criminal activity, but it shouldn’t be used to screen for things like age or gender.

Lindy Kyzer is the editor of ClearanceJobs.com. She loves the NISPPAC, social media, and the U.S. military. Have a conference, tip, or story idea to share? Email lindy.kyzer@clearancejobs.com. Interested in writing for ClearanceJobs.com? Learn more here.

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