It was 1986 when Ferris Bueller first famously opined that “isms are not good.”

That was a poignant observation from a sixteen-year-old borderline juvenile delinquent. Indeed, the prophetic assertion that has since gone down in cinematographic history has stood the test of time. Although Bueller’s peers likely understood him as referring to communism – it would be three more years before the Berlin wall fell and five years before the Soviet Union collapsed – the “isms” that continue to exist in our society today – sexism, racism, and classism, to name a few – are clearly also “not good.”

In the security clearance realm, perhaps the most prevalent “ism” I encounter is one that gets far less attention: ageism. Much of the reason for this is that the National Adjudicative Guidelines officially sanction ageism, both directly and by omission. In other words, when it comes to security clearance determinations, the federal government is perfectly entitled to discriminate against applicants with issues of adjudicative significance based on their age.

For example, Appendix A of Security Executive Agent Directive 4 (SEAD-4) states that “[t]he U.S. Government does not discriminate on the basis of race, color, religion, sex, national origin, disability, or sexual orientation in making a national security eligibility determination” (no mention of age). And SEAD-4 later goes on to explicitly indicate that adjudicators, in assessing the relevance of an individual’s past behavior, should take into account, among other considerations, “the individual’s age and maturity at the time of the conduct.”

Federal security officials convincingly argue in justification for this policy that individuals who commit petty crimes, consume alcohol to excess, or exhibit indiscretions as a young twenty-something are far more easily rehabilitated with time and the natural progression of maturation than a similarly situated applicant who happens to be in his 30’s, 40’s or 50’s.

Rationally, that makes sense in most cases. There are, however, outliers to the rule – people who exhibit a lapse in judgment based upon unusual or particularly trying life circumstances – on whom this policy can work an unduly harsh result.

Marijuana Use – a Security Clearance Violation Only for the Young?

Most common are cases of marijuana use while holding a security clearance. Security officials take a firm but somewhat forgiving approach to these cases for younger clearance holders who experiment with the drug once or twice and subsequently self-report the mistake. But hit your 30’s and the approach at some agencies is “one puff and you’re done.” I’ve seen it happen recently to several older individuals ranging in age from late 30’s to early 60’s. We were able to get a couple of the cases overturned on appeal, but not all of them.

In fairness, age and maturity is but one of nine (9) overarching considerations that should be taken into account by security officials in evaluating adverse information, but it is low-hanging fruit that requires little analysis to apply. Because of this, personnel security officials should be on guard against sub-consciously over-weighting age as a disqualifying factor – a situation I would argue is happening today throughout the government.

As the guidelines make clear, age is only supposed to be one part of a lengthy equation.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com