This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Our security clearance lawyers represent government contractors and federal employees before the National Security Agency (NSA) in security clearance (and employment cases). The NSA is an intelligence agency with its own unique security clearance process under Security Executive Agent Directive 4 (SEAD 4). This article discusses the appeals process for government contractors at the NSA for security clearance and Sensitive Compartmented Information (SCI) access denials or revocations.

The Security Clearance Process at the NSA

The security clearance appeals process at the NSA is similar to those used by other federal (and intelligence) agencies, with its own unique features. The following are the usual steps at the NSA in the security clearance or SCI review process for government contractors.

1. Revocation or Denial of Security Clearance/SCI Letter Issued by NSA

When a government contractor has a security clearance or SCI access denial or revocation with the NSA, they will receive a letter that provides the background and security clearance concerns in a case. The letter is referred to as a Clearance Decision Statement and will then state that the contractor is given 45 days from receipt of the letter to respond to the alleged security concerns. The investigative file, upon which the denial is based, will often be attached to the NSA letter to facilitate a response by the contractor. With other intelligence agencies, an individual must usually first request the investigative file. The investigative file will usually include documents, reports, interviews, or other items relevant to the NSA’s security concerns at issue. Our security clearance lawyers typically represent contractors starting with this first step.

2. Response to the NSA Clearance Decision Statement

If the contractor elects to challenge the Clearance Decision Statement they will respond to the NSA’s security concerns in writing. A thorough response must be prepared to address all of the security issues. It is critical to also provide exhibits, such as relevant evidence, declarations, character letters, declarations, affidavits, and other documentation related to the NSA’s security concerns or the character of the individual.

3. Decision by NSA Office of Personnel Security is Issued

Once the response to the Clearance Decision Statement is received by the NSA, the NSA Office of Personnel Security will review and issue a decision as to whether or not the security concerns against the government contractor have been dismissed or mitigated. If so, the matter is then resolved and the clearance or SCI is restored. If not, the individual will be provided a short decision briefly citing the reasons why the appeal was denied and informing the contractor of their right to a final appeal before the NSA Access Appeals Panel (AAP). There is then a very short period of time (usually 15 days) in which to either request a hearing with the AAP or otherwise simply submit a secondary written appeal.

4. Meeting with the NSA Access Appeals Panel

If the contractor has elected to provide an in-person response (which is recommended), the next step is a meeting with the AAP. Any additional supporting documents must usually be submitted no later than 14 days prior to the AAP hearing. The AAP hearing is an in-person presentation. During this hearing before the AAP, counsel and the contractor will present their case asking for a reversal of the negative security clearance or SCI determination. The panel normally has 6-7 people present (panel members and an NSA attorney/advisor) and typically asks several questions during the presentation so it is important to be prepared. We recommend legal counsel during this process to ensure adequate preparation for the AAP hearing.

5. The NSA AAP Decision

Following the AAP hearing, they will issue a decision, usually within 1-3 weeks, either granting the clearance or access or issuing a final denial. In a few cases, the NSA AAP may seek additional information or an additional response from the contractor. If the AAP issues a denial, the contractor may re-apply for a security clearance or access a year later. The relatively quick clearance review process at the NSA is unique among intelligence agencies where the security clearance process can often take much longer.

Conclusion

When a government contractor is facing security clearance issues at the NSA it is important to obtain legal advice and representation from an experienced security clearance lawyer. Our law firm advises government contractors and federal employees in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Approximately 20,000 federal employees are subject to disciplinary actions a year. Our nationwide federal employee lawyers represent federal employees in these disciplinary cases. Each disciplinary action defense is different and legal assistance is necessary by attorneys familiar with federal employment law.

Disciplinary Process for Federal Employees

There are various types of disciplinary actions for federal employees. These can include letters of counseling, reprimands, suspensions, demotions, and removals. For most serious disciplinary actions, referred to as adverse actions (usually removals), a federal employee will first receive a notice of the proposed discipline and the opportunity to respond. A proposal will typically have an explanation of the conduct or issues leading to the proposed disciplinary action.

If a federal employee is issued a notice of proposed disciplinary action, they will have the opportunity to contest it before it becomes final. Most permanent federal employees (past their probationary period) are entitled to due process. A federal employee can choose to provide a written response, an oral response, or both. We often recommend providing both oral and written responses.

Request Disciplinary Materials

In most disciplinary cases, it is important for federal employees to request all of the materials that have been relied upon by the agency in proposing the discipline. Sometimes they are attached to the proposal, and other times they must be requested. We request these materials before responding on behalf of federal employees at the beginning of a case.

Draft a Written Response

It is important to prepare a full written response to the allegations in proposed disciplinary cases. These responses are typically 5 to 20 pages in length, depending on the underlying facts and number of charges. Most written responses are typically due anywhere from 7 to 30 days after a proposal is given to a federal employee. The written response will address the alleged charges of misconduct or performance and any relevant mitigating factors (also known as the Douglas factors). In our responses, we also attach available evidence that contradicts the charges. Additionally, we attach declarations, affidavits, good performance records, character support letters, and other helpful exhibits.

Presenting the Oral Response

The oral response portion of a federal employee’s response can be very important. While written responses can be key in refuting specific allegations, there is something very important about personally meeting with the Deciding Official that will make the decision. We think that in serious cases, oral responses can make a significant difference in outcomes. We represent federal employees during oral responses. Typically, during an oral response, the federal employee, their attorney, and the Deciding Official (often with their counsel) will be present. The attorney and federal employee will get a chance to argue against the disciplinary action directly to the decision maker. After the oral response, there is usually a few weeks to a few months until a decision is made on the proposed discipline.

Appeals from Disciplinary Decisions

If an unjust disciplinary decision is sustained by a federal agency, there are various options for federal employees to appeal further. If serious enough, an individual can appeal to the Merit Systems Protection Board (MSPB). Other potential appeals can include filing Equal Employment Opportunity complaints or whistleblower appeals, where applicable. There are also a number of other types of appeals that may be brought, but legal advice is important when making such decisions.

Conclusion

When a federal employee receives or anticipates a proposed disciplinary action, it is important to have an attorney represent or advise them from the beginning. Our lawyers represent federal employees nationwide in all types of federal employee discipline. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We represent federal employees in the Equal Employment Opportunity (EEO) complaint process before their federal agencies.

This article briefly describes how the EEO complaint process works for federal employees. Keep in mind that each federal agency is different but essentially follows the same rules. These rules can be found at the EEOC website in MD-110. It is important to get legal advice before filing an EEO complaint.

Reasons for EEO Complaints

Complaints of discrimination may be filed by federal employees or applicants for employment with a federal agency when they believe that they have been discriminated against in the workplace because of:

• race
• color
• religion (including reasonable accommodation of religious beliefs or practices)
• national origin (ancestry, ethnicity, accent, and/or use of a language other than English)
• physical/mental disability (including reasonable accommodation requests)
• sex (including pregnancy, childbirth, lactation, abortion, and related medical conditions)
• sexual orientation, gender identity, gender expression
• age (40 and above)
• parental status
• retaliation for prior protected EEO activity (one of the most common complaints)
• genetic information

Pre-complaint EEO Process

A federal employee seeking to file an EEO complaint must first contact an EEO counselor within 45 calendar days of the alleged discrimination or within 45 calendar days of the effective date of action.

EEO Counseling Process

When contacted by a federal employee, the assigned EEO Counselor will explain the EEO complaint process and provide a federal employee their rights and responsibilities. The federal employee may choose, at the time of initial contact, to attempt to settle the complaint through the alternative dispute resolution (ADR) process.

Formal Complaint Process

If the EEO complaint is not resolved through ADR or at the counseling stage, a federal employee may file a written formal complaint within 15 calendar days of receiving a document referred to as the Notice of the Right to file a Discrimination Complaint.

Acceptance or Dismissal

If a complaint is accepted by the agency (the majority of timely complaints are accepted for investigation) an investigator will be assigned by the federal agency to conduct an impartial investigation of the alleged discrimination claims. An investigator is able to administer oaths to obtain testimony from relevant witnesses and relevant documents.

Investigations and Report of Investigation

An EEO investigator will compile a Report of Investigation (ROI) containing relevant testimony and documentary evidence about the claims of discrimination but does not make any findings in a case. Typically, a federal agency is required to complete an investigation within 180 calendar days of receipt of the formal complaint, with possible extensions available.

Within 30 calendar days of receipt of the ROI, a federal employee can choose to (1) request a hearing by an EEOC judge (typically recommended); or (2) an agency decision on the complaint (usually not recommended). Other options exist based on the timing of the investigation.

Final Agency Decision

If a federal employee requests a final agency decision (FAD), the agency will issue a decision based on the information in the ROI. This process is not usually recommended because federal agencies rarely find themselves guilty of discrimination. If a federal employee is not satisfied with the FAD, they can appeal further to the EEOC or go to federal court.

EEOC Hearing

The EEOC hearing process is typically the best process for federal employees and usually must be requested within 30 calendar days of receipt of the ROI. The EEOC hearing process is similar to a civil trial and can include document requests and depositions. Legal representation is critical for the hearing process. After a hearing, the judge will issue a decision, either finding for the federal employee or agency. Such decisions can also be appealed.

Contact Us

If you are a federal employee and in need of legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

It is important to obtain legal advice prior to meeting with security clearance investigators when potential security clearance problems are anticipated.

When individuals have difficulties in the security clearance process or anticipate future problems, the best advice that can be given is to prepare in advance for the meeting. Preparation for the first security clearance meeting can make the difference between a government contractor/federal employee successfully obtaining/retaining a security clearance or being denied one.

Preparing for the Initial Security Clearance Investigator Meeting

One of the most important considerations in meeting with a security clearance investigator for the first time is to adequately prepare for the meeting, especially where there may be potential disqualifying security concerns. We find that most government contractors and federal employees have a general sense of potential security concerns that could arise at the time that they begin to review or complete their e-QIP/SF-86 submissions.

In the most common scenario, an individual is usually alerted to potential problems that may require preparation for the clearance process when they find that they may have to answer “yes” to a certain question and then provide formal disclosures to an uncomfortable question, such as the use of drugs or past financial debts. When these types of issues are anticipated, then one should seek counsel and prepare in advance of a meeting with a security clearance investigator.

Review Relevant Documentation

If a potential security concern exists, it is important to gather as much information and documentation one has on the issue of concern in preparation for the interview.  Such information, if useful, can be provided to security clearance investigators at the start.  At other times, the information can be useful for later in the clearance process, if needed.

For example, suppose an individual knows that they have a large outstanding debt on their credit report. If so, then that information will certainly be important to review prior to a meeting with a security clearance investigator.

Respond to the Questions Asked

In regard to meetings between government contractors/federal employees and security clearance investigators, one other issue that we run across is the tendency of some individuals to provide information not sought by an investigator.

We advise government contractors and federal employees to answer the questions asked by investigators as honestly as possible but stick to the actual questions that are posed. On many occasions, individuals can get sidetracked or provide information that is not relevant to the questions asked by an investigator, which may cause clearance difficulties later or cause frustration for the investigator.

The usual key to a successful interview is to be as responsive as possible to any areas of concern but to make the meeting with the clearance investigator as efficient as possible. Investigators tend to have many cases to review and like to focus on their particular areas of concern. The better an individual can honestly address specific issues raised by an investigator, the better the potential outcome.

When issues arise, it is important to consult with counsel to obtain the best legal advice possible in presenting one’s response to difficult questions.

Follow-up Interviews or Requests by the Investigator

A security clearance investigator may need additional information regarding potential security concerns or need to interview an individual a second time. We typically advise individuals to attempt to anticipate these requests in advance.

For example, if an investigator appears to have questions about one’s psychological issues during an initial interview, it may be helpful to attempt to obtain a letter from a medical professional soon after that shows that the psychological concerns are under control and have been resolved. Doing so in advance can save time and effort later and may resolve issues early should the investigator come back with additional questions.

Contact Us

If you are in need of security clearance legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We represent federal employees in federal agency investigations. Generally, most federal employment misconduct cases start as a result of a complaint by other federal employees alleging misconduct.

When a federal employee is notified that they are under investigation or suspects that they may be investigated regarding possible misconduct, it is very important to speak to a federal employment attorney for advice and possible representation.

Common Types of Federal Employee Investigations

While it is very difficult to cover each type of potential misconduct that a federal employee might be investigated for, some of the more frequent investigations involve:

• Misconduct in the Workplace
• Lack of Candor
• Misuse of a Government Computer/Internet
• Misuse of a Government Credit Card, Vehicle or Travel Card
• Discrimination or Harassment in the Workplace
• Time Card/Attendance Issues
• Off-Duty Criminal, Alcohol or Traffic Conduct
• Security Violations
• Insubordination
• Disrespectful Conduct in the Workplace

A Typical Federal Employee Investigation

The usual process for a federal employee investigation begins when the federal employee is notified (usually with very short notice or even the same day) that an investigator needs to speak with them about an issue. Investigators do not usually provide information about the nature of the complaint or investigative issues until the federal employee arrives at the meeting.

The investigator can be a supervisor, an agency investigator, an individual from human resources, or an agent assigned by the agency’s Office of Inspector General (OIG). Generally, a misconduct investigation starts with very little advice or information about what a federal employee should expect or what rights are available to them.

The Interview

In many cases a federal employee shows up for a scheduled meeting and an investigator just starts asking them questions. In other cases, the interviewer may start by asking the federal employee to sign a statement agreeing to be voluntarily interviewed and waiving their rights. This is the most usual method and offers little protection to a federal employee.

In other cases, a federal employee may be asked to sign what is known as a Kalkines notice, understanding that they are being ordered to speak to investigators under penalty of disciplinary action for not doing so. In such a case, many investigations can then lead to sustained federal employee discipline and potential appeals to the Merit Systems Protection Board (MSPB). Deciding when and how to provide testimony to agency investigators is a case-by-case decision. Each case varies, so obtaining legal advice is very important.

Federal Employee Interviews

An interview can last 30 minutes to many hours. Following the interview, many investigators summarize the testimony given by the federal employee and attempt to have them sign an official statement (or sworn declaration) about the information they provided. It is very important for a federal employee to carefully review the written summary. A federal employee will want to ensure that investigators do not insert their own characterizations (many times incorrect) of the statements made into a final written statement signed or sworn to by them.

Retain a Federal Employment Attorney for Advice or Representation

Having a federal employment lawyer represent or advise a federal employee during the investigation process is important. An attorney can advise and/or represent a federal employee before, after, and in many cases, during the investigative interview. It is important to have such counsel early because doing so can help prevent or mitigate potential disciplinary action later.

Furthermore, it can often help that an investigator knows that the federal employee is represented by counsel because they tend to follow the rules for doing so more carefully. Furthermore, should the issues involved turn potentially criminal in nature, it is important to be represented.

Contact Us

It is important for a federal employee to be represented by a federal employment attorney during investigative interviews and misconduct investigations. Berry & Berry, PLLC represents federal employees in these types of federal employment investigations and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Melissa L. Watkins, Esq.

Polygraphs are a mysterious notion for individuals considering exploring careers that require high levels of clearance.

For those who have never taken a polygraph, most of the procedures and protocols surrounding them are unknown. And for those who have already participated in one, they likely understand the potential pitfalls that lie in the process.

What many individuals do not know is that most agencies requiring polygraphs have policies in place allowing legal counsel to attend. For instance, the Department of Defense’s policy provides that you “have a right to talk privately with a lawyer before, during, and after the polygraph examination.” Individuals are almost always required to complete a consent form prior to the polygraph examination.

Keep in mind that in most polygraphs, legal counsel is not necessary. However, in a minority of cases, legal counsel may be recommended for individuals that have previously had polygraph issues or who may end up disclosing information that could be adverse.

When is Polygraph Representation a Good Idea

It isn’t always necessary to have legal counsel during a polygraph examination. However, there are a number of situations where it may be a good idea. Such might include:

1. An individual has had a difficult time with earlier polygraph exams and needs reassurance during the examination.
2. If there are unique legal issues that could come up during a polygraph which might require immediate legal advice.
3. An individual has engaged in conduct that could raise criminal liability concerns.

What Can Lawyers Do During a Polygraph?

In certain situations you may want to consider bringing legal counsel to the examination. While legal counsel cannot stop the examination or provide your answers for you, legal counsel can be present for you to speak with before, during breaks, and after the examination. In our experience, it is helpful to have experienced counsel there to discuss the information being disclosed and how to potentially mitigate any concerns when circumstances dictate.

The mere presence of legal counsel also may cause polygraphers to adhere to the normal bounds of polygraph practice. For most agencies, you will arrive at the testing location and would be able to meet with your attorney beforehand. During the examination, your attorney may sit either right outside the examination room, or in a separate room where a video of the ongoing exam would be viewable by the attorney.

Each agency has different polygraph procedures. When needed, at any point during the exam, you would be able to request to speak with your attorney privately to obtain guidance or counsel for your questions or concerns.

Contact Us

If you are an employee in need of security clearance or polygraph representation, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook and Twitter.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Employee use of computers and workplace internet has become relatively common.

As a result, there are many times when employees get disciplined or terminated for such usage. We generally advise employees to avoid using workplace computers and/or internet connections, even where permitted, wherever possible.

Common Issues for Employees

The most frequent problems that arise for employees in this area involve:

(1) Watching entertainment programs (Neltfix, Hulu, Disney+ etc.)
(2) Excessive social media usage (Facebook, Twitter, Instagram, Snapchat, TikTok)
(3) Online gaming at work
(4) Watching, sending or receiving sexually explicit or otherwise inappropriate materials
(5) Sending harassing, violent, discriminating or hateful messages on company computers
(6) Using workplace computers or the internet at work to commit any kind of illegal activity, including the piracy of movies, music, games, etc.
(7) Distributing company information outside the company.

There are countless other examples which can violate company usage policies. Each company has their own computer and internet usage policy and it is important for employees to read them.

In our experience, many company computer and internet usage policies are fairly restrictive in writing, but not really enforced unless other employment issues arise. When such issues arise, an employer may have the ability to review an employee’s computer or internet usage on their work devices and attempt to discipline or dismiss an employee if they choose.

Defenses

There can be legal defenses available when an employee is wrongfully terminated from an employer where computer or internet usage is the underlying issue. These defenses would depend on the facts of the underlying incident and the individual company policy. Possible legal defense and/or representation should be discussed with a lawyer.

Contact Us

When an employee faces a disciplinary investigation or action based on alleged computer or internet misuse, it is very important to retain legal counsel familiar with these issues. Our law firm represents employees and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Brendan C. Stautberg, Esq.,

Financial issues are a frequent reason security clearance applicants run into problems during the adjudication process. That may not be surprising: it makes sense that the government would care about your financial status — including your record of paying off debts, meeting other obligations, and living within your means — because of how those aspects of your life and conduct reflect your trustworthiness and reliability.

And it is not unusual for Americans to have various debts, whether current or resolved, and sometimes people fall behind on their payments for whatever reason. It happens; people can and do fall on hard times for reasons entirely outside their control. Likewise, sometimes people make bad financial decisions that it can take significant time and effort to recover from.

Luckily, financial issues are not necessarily the end of the road when it comes to obtaining a security clearance. Many people are granted clearances despite outstanding debts and other problems. However, to get to there, it is crucial to understand how to address financial concerns in a way that will satisfy clearance adjudicators.

Financial Issues in the Security Clearance Context

When you first apply for a security clearance, you are faced with a new level of scrutiny, including towards your finances. But the nuances of this scrutiny, although very important, can be difficult to understand at first. For example, again, it is hardly the case that you cannot be granted a security clearance if you have any outstanding debt. On the opposite end of the spectrum, though, you can also be denied a clearance even if you have completely resolved past financial issues if other concerns about your financial responsibility remain.

Therefore, it is important to understand what clearance adjudicators are looking for when they allege a finance-related security concern. This topic is also a great example of why it is important to be represented by an experienced attorney in order to maximize your chances of successfully appealing an unfavorable clearance decision.

Depending on the federal agency involved, whether the applicant is employed by a contractor, and what stage the process is in, security clearance adjudications may be processed within the Defense Office of Hearings and Appeals (DOHA), the Defense Counterintelligence and Security Agency (DCSA), or within a sponsoring agency’s own security office. Regardless of which agency or office is adjudicating your case, the clearance adjudicators use standards from a document called Security Executive Agent Directive 4 (SEAD 4), which is issued by the Director of National Intelligence. The financial component of SEAD 4’s National Security Adjudicative Guidelines is Guideline F: Financial Issues.

Understanding and Responding to a Guideline F Concern

While Guideline F itself provides further details on what types of conduct can give rise to a financially based security concern, the main takeaway from Guideline F is twofold: first, financial irresponsibility demonstrates a lack of good judgment, self-control, reliability, and similar traits deemed important to safeguarding classified information, in addition to irresponsibility potentially reflecting other problems such as substance abuse.

Second, financial overextension could lead someone to engage in illegal activity to make ends meet, and it could also open them up to blackmail. As a result, the Guideline F calculus assesses both your own responsibility and actions as well as whether your financial situation increases your risk of other problems.

However, a frequent pitfall in Guideline F cases is that the applicant will focus too much on their current financial situation and not on the other aspects of their financial history. It is easy to mistakenly assume that as long as you demonstrate to the adjudicators that you have paid off your debts or resolved whatever other issues there may be, you are in the clear. Unfortunately, that by itself is often not enough.

Security adjudicators are not just looking at your current financial picture, but also at two other aspects of whatever issues they may allege: first, how you got into the situation in question, and second, what you have done to deal with it. For example, if you have a charged-off debt in your credit report, then even if you have since paid the debt in full or otherwise resolved it, adjudicators will want to know details about why the debt was charged off in the first place, and they will also want to know why you didn’t make payments for whatever period of time may be the case.

Even if you did make payments or otherwise attempt to resolve the problem, adjudicators will want to see hard evidence of your payments or other efforts — they will not just take your word for it, and the burden is on you as the applicant to provide sufficient evidence. However, if you can provide good explanations about your good-faith efforts to address any financial issues to the best of your ability, as well as adequately explaining the circumstances that led to the problem in the first place, then your chance of sufficiently mitigating a Guideline F security concern is much greater.

Contact Us

Our firm handles many security clearance cases, including Guideline F matters, for federal and federal contractor employees. If you are a security clearance holder or applicant in need of representation, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook and Twitter.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Kara Osborne, Esq.

There are many protections in the law for employees in the workplace, specifically, the Civil Rights Act of 1964 (Title VII) which makes it unlawful for an employer to discriminate against an employee because of their race, color, religion, sex (including pregnancy and related conditions, sexual orientation, and gender identity), or national origin.

Gender Stereotyping in the Workplace

Title VII also makes it unlawful to use policies or practices that seem neutral but have a discriminatory effect against people because of the abovementioned protected classes. That being said, sex or gender stereotyping is a less obvious form of sex discrimination, and it occurs when an employer discriminates against an employee because he or she does not follow the “expected” gender stereotypes and impressions.

The pivotal case regarding Title VII gender stereotyping claims is Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989). In this case, the Supreme Court stated that evidence of an employer’s gender stereotyping could be used to prove that an employee faced unlawful sex discrimination. The Supreme Court held that “as for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group…”

While Price Waterhouse dealt with sex stereotypes regarding women, many subsequent cases apply the standard against sexual stereotyping to men, such as patriarchal, transgender and gay stereotypes such as not “acting” how their perceived gender would act.

Treating employees adversely for not conforming to sex stereotypes of any kind, not just “femininity”, is a form of unlawful sex discrimination under Title VII. Justice Neil Gorsuch and the United States Supreme Court in 2020 (Bostock v. Clayton County, 140 S. Ct. 1731, 1737 (2020), held that “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” The Supreme Court further stated that when an individual is fired because of their sexuality or gender identity, “sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Although our society has come a long way in terms of equality in the workplace, there still is a pervasive issue when it comes to intrinsic stereotypes based on a person’s sex, gender, or sexual orientation.

An employer who fires an individual for being gay or transgender does so for traits that it would not have questioned in members of a different sex, just as if an employer fires a woman for acting “too aggressively” or not dressing femininely or a man for not conforming to patriarchal expectations. These limited examples show how employment decisions “because of” sex stereotyping are in direct violation of Title VII and are actionable for employees.

Contact Us

If you are an employee in need of employment law representation, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook and Twitter.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Kara Osborne, Esq.

On January 5, 2022, the Federal Trade Commission (FTC) proposed a rule that would ban U.S. employers from imposing non-compete clauses on workers.

The Code of Federal Regulations, Subchapter J, Part 910 (b)(1) defines non-compete clauses as “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.”

This proposed rule not only would prevent employers from entering into non-compete clauses with their employees but also would require employers to rescind existing non-compete clauses within a specified period of time.

The proposal comes after President Biden called for the FTC to ban or limit clauses in employment contracts that restrict workers’ freedom to change jobs. FTC Chair Lina M. Khan said in a statement, “The freedom to change jobs is core to economic liberty and to a competitive, thriving economy,” and “Non-compete block workers from freely switching jobs, depriving them of higher wages and better working conditions, and depriving businesses of a talent pool that they need to build and expand.”

The FTC estimates that this proposed ban could dramatically increase wages by almost $300 billion per year.

Prior to this proposed rule the FTC issued new guidance on how it would exercise its authority to regulate “unfair methods of competition” under Section 5 of the FTC Act.

The proposed rules states that the use of non-compete clauses would be an “unfair method of competition for an employer to enter into or attempt to enter into a non-compete clause with a worker; maintain with a worker a non-compete clause; or represent to a worker that the worker is subject to a non-compete clause where the employer has no good faith basis to believe that the worker is subject to an enforceable non-compete clause.”

Employers could argue that non-compete clauses allow for broad protection of their trade secrets and investments, but as shown by the FTC and in comments made by President Biden, the clauses are overused at virtually every level of employment and deprives workers of their ability to grow within their field and pursue a higher salary.

Should the proposed rule pass, it might require employers to shift focus on protecting their innovations with the use of confidentiality clauses and compliance with trade secret laws rather than reliance on overly broad non-compete clauses that stifle competition and economic growth.

With this proposed ban on non-compete clauses, workers would have the ability to change jobs more freely causing employers to become more focused on protecting their employees, their working conditions, and the wages they earn.

It should be noted that within the proposed rule there is one narrow exception that applies to individuals selling a business: their ownership interest in a business or the business’ operating assets in total. These specific non-compete clauses would remain subject to federal antitrust law. Should the proposed rule go into effect it is likely to face many legal challenges.

If you are an employee in need of employment law representation, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook and Twitter.