Lindy Kyzer and Sean Bigley discuss ageism in the security clearance process. This is a real issue for people, particularly for drug cases in the Defense Office of Hearings and Appeals (DOHA), in that they should have known better. Is there gray hair discrimination in the Pentagon? Tune in to this episode to learn more.
Sean Bigley:
I am Sean Bigley and I’m here with Lindy Kyzer of Clearancejobs.com. We’re talking in this segment about ageism in security clearance adjudications. And Lindy, I don’t know about you, but as I get older, I start to appreciate or understand a bit this whole ageism thing at the ripe old age of 37. I know it’s maybe a little hard for you to swallow there, but it is true, I’m starting to feel it in my bones, the age creeping in, and it’s not the same getting out of a pool as it was 15 years ago.
So I think I’m starting to empathize somewhat with the older crowd, but nonetheless, I do think this is something that is a real issue for people in various situations, particularly with drug use. And we’ve seen it time and time again. I know you’ve seen this come up in DOHA cases, for example, where the administrative judge will hammer somebody for their poor judgment, and often the focal point of that discussion is their age, and oh, they should have known better. So I’m curious, now that you’re older and wiser, we won’t tell anybody your age, but what is the sense that you have about ageism and adjudications?
Lindy Kyzer:
I’m like, watch yourself, Sean. I feel like you’re trying to comment on how much older I am than you. Sean, I am an old woman. I look terrible today, but people can’t see. I went for a run, that’s what keeps me young. It makes me look terrible afterwards. But yeah, no, I’m older and I’m old. But I got the ageism in the security clearance process. I’ve actually written about this though, because I get a ton of questions about what it’s like to be a woman working in the defense industry. Having worked at the Pentagon and served in different roles, I got asked a lot if there was gender discrimination within the military, and that actually wasn’t my personal experience. I think everybody has different experiences, but what I said from the get go is there was absolutely gray hair discrimination in the Pentagon, IE, if you didn’t have any yet, they were not going to take you very seriously. I think we have this cult of experience around the defense industry, and you can see that.
So if you have experience that’s certainly favored. What you mentioned is literally the cross hairs of that around the security clearance process is that they certainly expect you to know better once you have some gray hairs. So it’s always interesting reading the DOHA cases that they actually list out your age, your marital status, some personal details, sometimes some really obscure ones, probably which people are volunteering as a part of this process, but things that you might not necessarily consider relevant. And I think it’s because we do have this whole person concept. They’re looking at the totality of your life and circumstances and saying, Hey, what about your personal experience and personhood could have led to this situation resulting your security clearance denial and revocation. And as you said, it’s a lot easier to mitigate stupid life choices around just about every adjudicated criteria, we see it around alcohol, if it’s a college alcohol issue versus a 20 year alcohol abuse situation. If it’s financial situations, a lot of military service members will use the deployment card or I was serving the military, making some poor life choices.
If you’re a defense contractor who’s been working for 30 years, that’s a little bit harder of a card to play. So yeah, I’d love to get even more insight in your experience around that. But that is my understanding based on reading the cases, is that age is going to be a factor in the security clearance process. It will help you in terms of your career viability in a lot of cases because the government does like people with experience. It will hurt you if you do something dumb and are looking at losing your security clearance because they expect you to know better at that point.
Sean Bigley:
Yeah, it’s funny. It is a double-edged sword for sure. It’s much like in the legal industry. There’s an old joke that people hire lawyers with gray hair, and it’s very true. Now, I have no hair at this point left, so that’s not an issue for me. And I also did most of my work when I was practicing remotely, so most of my clients had no idea how old I was, so I think that also helped. But yeah, it does couple with ways I always think about this in the context. Whenever I hear this word ageism, one of my favorite movies of all time, Ferris Bueller’s Day Off, in the scene where he famously opines that isms are not good, and I agree completely. There are very few, if any, isms that I can think about that are good, and ageism is certainly one of them. And yes, it may be viewed as discriminatory, certainly in other contexts it would be right.
In the private sector and in hiring generally, you can’t discriminate against somebody because of their age, just like by the way, you can’t discriminate against somebody for having perhaps a mental health condition in many states, and in many job descriptions. The federal government’s different, if you have a mental health condition that impedes your ability to protect classified information, then you can be denied a clearance. And that’s something that’s going to generally withhold scrutiny in a court. And so ageism is the same way the government is entitled to consider somebody’s age and experience or lack thereof to determine whether or not they should have known better with whatever it was that they’re doing. So it can be an aggravating factor certainly. I’ve seen cases over the years where somebody has tried marijuana for the first time when they’re in their fifties and they’ve held a clearance for 25 years, and the government says, one and done. We think you have terrible judgment and you should have known better and adios. And it’s astounding to the person, Hey, I tried it once.
I’ve seen cases, on the other hand, where somebody’s coming into the government, they’ve tried every drug under the sun and dozens of times, but it was when they were in college and now they’re 25 and they’ve had a few years under their belt. It passes muster. So there is really a disparity here, I think particularly in the case of drug use, but also to your point, just judgment generally. That word, as subjective as it is, comes up all the time in security clearance adjudication. Reliability, also a big one, integrity, and then of course judgment, those three prongs, I would say, are the most commonly touted attributes that clearance holders are expected to have. And so when one of those is kicked out from under you, it’s like the three-legged stool that everything comes crashing down. It’s tough. But have you seen people be able to rehabilitate the ageism issue or in your sense, is it well, you should have known better, and that’s it, your judgment is fatally flawed?
Lindy Kyzer:
I do think the government does look at the totality of circumstances. I’ve seen those cases where someone certainly is a more senior person and should have known better and has been able to mitigate it showing a lot of other existential circumstances around why they slipped up and did something. I think the other area where ageism has come up recently, and we’ve talked about this before, Sean, is with the Tashara case, and how the young people having security clearances. I know we talked about that last time. And so I’ve gotten a few questions recently about, “Hey, isn’t this a part of a trend? We have reality winner. We have this guy Edward Snowden, it’s only young people who leak classified information.” And I’m always like, “Well, I mean, look, no, not actually. We have to remember years before what’s right in front of our face.” We have Harold Martin even recently, even especially go to the NCSC website and look up their cases for folks who have worked in defense contracting, sent documents over to China, a lot of folks serving across the military, many of them in that middle aged kind of experience level.
So the espionage issue as far as ageism, you could honestly say that the government is right to look at people in middle age who are having financial issues. Midlife crisis is real. People, things get real legit. You start having a lot of kids, you got a lot of money problems, you got tension, you got relationship problems. Man, life hits hard. I’d give a young person with a clean slate a clearance before I’d give some of the people I know hitting middle age, man, make some poor life choices. I think that’s where it comes across. I think the government is probably right to look at somebody and say, you just have more to lose and more to gain. And so there’s just some folks, that judgment, reliability, trustworthiness piece of it, if you’re making poor choices around a lot of other issues, are you going to make those around your career.
Sean Bigley:
I really was thinking about ageism in the context of being old, right, that’s what typically we think of ageism is discrimination against older people. And yet you bring up a very good point, which is does it work the reverse way, and are younger people potentially because of their age and their perceived inexperience, or in this case potential to have a motor mouth and leak secrets or whatever the case may be, is that also harming our ability to recruit well-qualified people into national security jobs? And I do think it cuts both ways. Yes, I think there have been some bad press lately for younger folks in the national security community as a result of a few people making bad decisions. But I think on the whole, at least from what I’ve seen in my law practice, I think the older you get and the longer you’ve been around this space, the harder it is to recover from a bad judgment call as opposed to being someone younger. I think that the flip side is being younger, 20 somethings are not typically known for good judgment.
So there’s probably a wider pool of people who have maybe disqualified themselves temporarily from holding a clearance, but it’s not to say that that’s not recoverable. And so I over the years represented a lot of younger people who had made mistakes, for example, in their college years, and now they’re in their early to mid-twenties and they’re trying to right the ship and get into their dream job. And I would get calls like that all the time, like, “Oh my gosh, I’m so frantic and I have so much anxiety. I smoked weed every day for my college career. What do I do?” And I would always tell them, “You’re not completely down and out permanently. You probably just need to give it a little bit of time and you’re going to be okay.” I suppose as you get older and older, that may be less of a luxury. So at the end of the day, we all make choices and I guess the best thing I can say is hopefully if they’re poor choices, you make them while they’re young.
