Disability Bias Claim Not Barred by National Security Exemption

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By Jay-Anne B. Casuga

The Tennessee Valley Authority can’t rely on the need for national security to avoid claims it imposed discriminatory physical fitness requirements on employees, a federal appeals court held Dec. 29 ( Hale v. Johnson , 2016 BL 433659, 6th Cir., No. 16-5475, 12/29/16 ).

The Sixth Circuit’s ruling addresses an exemption under Title VII of the 1964 Civil Rights Act that doesn’t appear often in litigation. That exemption bars federal courts from hearing discrimination claims brought by employees challenging an employer’s denial or revocation of a security clearance.

James Hale, who was fired by the TVA after he failed a pulmonary function test, brought disability discrimination claims against the authority under the Americans with Disabilities Act and the Rehabilitation Act. Medical clearance is a condition of employment at TVA based on Nuclear Regulatory Commission physical fitness requirements.

The TVA argued that Hale’s Rehabilitation Act claim should be dismissed under Title VII’s national security exemption. But the U.S. Court of Appeals for the Sixth Circuit disagreed.

Neither the text of the Rehabilitation Act nor its legislative history expressly references the national security exemption, the court said. Additionally, no cases have applied the exemption to Rehabilitation Act claims, it said.

Judge Bernice B. Donald wrote the opinion, joined by Judges Danny J. Boggs and Ronald L. Gilman.

The TVA is reviewing the ruling, a spokesman told Bloomberg BNA Dec. 29.

“The case will now return to the District Court for Eastern Tennessee in Chattanooga where legal proceedings will continue in accordance with the direction of the Sixth Circuit,” he said.

Hale’s attorney, Douglas S. Hamill of Burnette, Dobson & Pinchak in Chattanooga, Tenn., wasn’t immediately available to provide comment.

No Protection From Egan Doctrine

The Sixth Circuit also rejected the TVA’s argument that courts lack jurisdiction to hear Hale’s claims based on a separate legal doctrine established by Department of the Navy v. Egan, 484 U.S. 518 (1988).

Egan also bars court review of security-clearance decisions, but nothing in that ruling suggests that it can be extended to employer determinations about a worker’s physical ability to perform a job, the court said.

“We need not create a per se rule that Egan can never apply outside of the context of security clearances,” the court said. “But put simply, nothing in Egan suggests that its holding applies to physical-fitness judgments, even if purportedly based on the interest of national security.”

Prior to the Sixth Circuit’s decision, the Fifth Circuit was the most recent appeals court to address Title VII’s national security exemption in a published opinion. In 2013, it applied the exemption to bar the discrimination claims of a contract employee whose access to an FBI office in Texas was revoked because of alleged security breaches.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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