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State secrets trump Title VII
August 03, 2005 by Ross Runkel at LawMemo

How can a covert CIA agent bring a Title VII action without running head-on into the "state secrets doctrine"?

Jeffrey Sterling, an African-American, was a covert CIA agent who claimed racial discrimination by CIA management plus retaliation for using internal EEO procedures.

In defending Sterling's Title VII action, the CIA Director filed a declaration with the court saying that this case would require disclosure of highly classified information about the identity, locations, and assignment of CIA operatives.

The judge reviewed the declarations ex parte and in camera.

Conclusion: Case dismissed. The 4th Circuit affirmed. Sterling v. Tenet (4th Cir 08/03/2005). http://caselaw.findlaw.com/data2/circs/4th/041495p.pdf

• Proving a prima case would require revealing secret information.
• Requiring the government to show a legitimate non-discriminatory reason would involve disclosure of secret information.
• Proof of the facts in this case would require attendance by witnesses who would be covert CIA operatives.
• Proceeding under special procedures would be too risky.

Bottom line: Dismiss the case.

My view: An unusual situation that most lawyers will never confront.

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