I’ll never forget the deer-in-headlights looks from a room of defense contractor human resources-types when I spoke to an industry conference two years ago about the dangers of pre-employment “clearability” screening.
I’d just finished explaining the legal pitfalls, when a rather stunned-looking man raised his hand and asked why no one in his legal counsel’s office had ever warned the company about this before. It was a great question, but one with no good answer. My best guess: they either don’t know it is happening or they haven’t fully thought through the implications.
I’ve been writing and talking about this topic since 2014, but it seems that a lot of cleared contractors still aren’t getting the message about the risks of so-called pre-hiring “clearability” assessments. If you’re unfamiliar with the term but work in cleared government contracting, you’re probably at least familiar with the concept. In a nutshell, it is the practice of government contractors requiring detailed questionnaires from prospective new hires on topics that could impact one’s ability to obtain or retain a security clearance. The employer’s security office reviews the responses and then renders an opinion on the likelihood of the applicant’s chances. The information is shared with the human resources office prior to any final offer of employment being extended.
It may sound like common sense from a business perspective; why hire someone who likely won’t obtain the required security clearance? But this is a case of “if its too good to be true, it probably is.” Frankly, it is a legal nightmare; a gift to plaintiff’s attorneys tied up in a nice little bow.
There are a variety of reasons for this, but they all boil down to one major problem: unlike the federal government, which has given itself a national security exception to employment discrimination laws, government contractors have no such exception. When the contractor doesn’t hire an applicant on the (often highly subjective) basis that s/he would be unable to obtain the required clearance, the employer is inviting lawsuits claiming that the real reason for the non-hiring was information gleaned from the clearability assessment. And when the employer would otherwise not have been entitled to that information during the normal hiring process, and the information implicates a protected category under anti-discrimination laws, a judge or jury might see the employer as attempting an end-run around the law. That’s not a position any employer wants to be in – yet so many cleared contractors are willingly subjecting themselves to the risks for expediency.
In fairness, the sometimes-blurry lines between government and government contracting, coupled with a desire to please the government customer, can contribute to this dynamic; but neither is a valid legal defense, and thus the risks remain entirely self-inflicted. My 2014 article offers several hypothetical examples and cautions that any employer relying on a separation between the security and human resources offices to blunt discrimination claims may want to think twice about that. I won’t rehash it all here, but I urge any cleared contractors utilizing pre-hiring clearability assessments to carefully consider the risks and consult with their legal counsel. In my view, the practice is – still – a very bad idea.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
