Today’s case is from the very end of December of last year and involves a question that I have not seen before. That is, if there is a national-security exemption for having to comply with the ADA and the Rehabilitation Act? The case is Hale v. Johnson decided by the Sixth Circuit on December 29, 2016. As is usual, the blog entry is divided into categories: Facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.



The facts are really straightforward. All plant officers working for the Tennessee Valley Authority have to maintain medical clearance as a condition of employment. From the time the plaintiff began employment in 2009, he had always maintained the level of clearance necessary for his position. However, in 2013, the Tennessee Valley Authority made a pulmonary function test a requirement to obtain medical clearance. Since the plaintiff had chronic obstructive pulmonary disorder, he failed that test. Upon failure of the test, the Tennessee Valley Authority terminated him. The Tennessee Valley Authority moved for summary judgment arguing that the court lacked subject matter jurisdiction due to a national security exemption. While the District Court disagreed with that claim, it did certify the case for an interlocutory appeal.


Court’s Reasoning

  1. Title VII of the Civil Rights Act does contain a national-security exemption at 42 U.S.C. §2000e-2(g), but the Rehabilitation Act contains no such exemption.
  2. Where Congress included particular language in one section of the statute but omits it in another section of the same act, it is presumed as a general matter that Congress acts intentionally and purposely with respect to that inclusion or exclusion
  3. If Congress intended for all of title VII’s provisions to apply to the Rehabilitation Act, it would not have enumerated specific sections when it came to the remedies for violations of the Rehabilitation Act. In fact, Congress did make its intent clear to have all of title VI applicable to the remedy section of the Rehabilitation Act.
  4. Nothing in the legislative history of the Rehabilitation Act or §717 of title VII establishes the applicability of the national security exemption.
  5. There is a complete absence of case law applying the national-security exemption to claims brought under the Rehabilitation Act. In fact, the Tennessee Valley Authority did not cite a single case, and for that matter, the court was not able to find one either.
  6. While this case, Department of the Navy v. Egan , precludes judicial review of security clearance decisions, that is a completely different kettle of fish than whether a person can do the essential functions of the job with or without reasonable accommodations.
  7. Egan pertained to executive control over access to national security information and not to national security concerns such as those pertaining to whether an individual has the physical capacity to guard a nuclear plant. In other words, nothing in that decision suggested that its holding applied to physical fitness judgments even where such judgments are purportedly based upon the interest of national security.
  8. In contrast to deciding whether a person has a propensity to disclose classified information, the determination of an individual’s physical capability to perform a job is based upon hard science and is one that has historically been reviewed by courts and administrative agencies.
  9. Even if Egan extends to sensitive positions and sensitive information, that is still a different matter than a judgment concerning physical fitness.
  10. To hold otherwise, would mean that the Sixth Circuit would find itself in an untenable position where they were precluded from reviewing any federal agency’s employment decision so long as it was made in the name of national security.



  1. While the plaintiff sued under both the Rehabilitation Act and the ADA, the court’s reasoning doesn’t mention the ADA at all. That said, since the two have virtually identical requirements, the holding would probably be the same under the ADA as well.
  2. You might get a different result if the position affected national security and access to classified information.