The Ninth Circuit Court of Appeal opinion in Zeinali v. Raytheon Co., 636 F.3d 544 (9th Cir. 2011), marks yet another reminder that employers that treat similarly situated employees differently can set themselves up for costly discrimination lawsuits.

In Zeinali, the plaintiff, who is of Iranian descent, had been employed by Raytheon for approximately four years.  At the start of his employment, Raytheon informed the plaintiff that the position into which he was hired required special security clearance and that his continued employment was contingent on obtaining that clearance but put him to work while a clearance decision was pending.  After he had already been working at the company for several years, the Department of Defense denied the plaintiff’s security clearance.  Shortly thereafter, Raytheon terminated the plaintiff’s employment on account of “multiple factors,” chief among them being Zeinali’s “inability to obtain [a] security clearance.”  The company testified that “if Zeinali had received a clearance, he would not have been fired . . . .”

The plaintiff sued Raytheon alleging, among other things, that Raytheon violated the California Fair Employment and Housing Act (FEHA) by terminating him on the basis of his race and national origin after he was denied the security clearance by the Department of Defense.

Based on evidence submitted by the plaintiff demonstrating that at least two non-Iranian engineers were retained by Raytheon even though they too lacked security clearance, the Court concluded that Zeinali’s evidence raised enough disputed issues of material fact to allow the case to proceed to trial and overcome summary judgment.  See id. at 553 (“In light of the fact that Raytheon retained multiple non-Iranian engineers after their security clearances were revoked, Zeinali has raised triable disputes regarding (1) whether security clearances were a bona fide requirement for Raytheon engineers, and (2) whether Raytheon’s central purported reason for terminating him (his lack of a security clearance) was pretextual. . . . [I]n the present case, Raytheon would certainly be justified in firing employees who lack security clearances, ‘but only if this criterion is applied alike to members of all races.’”) (citations omitted).

Consequently, Zeinali instructs California employers that when they treat similarly situated employees differently based on alleged policy violations, they may be exposing themselves to liability for race, national origin, and other forms of discrimination and/or retaliation.


Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at to learn more about us.

Polina Bernstein

Polina Bernstein

Polina Bernstein founded Bernstein & Friedland, P.C. in 2009 and is lead litigation counsel at the firm.

Diana Friedland

Diana Friedland

Diana Friedland is a partner at Bernstein & Friedland, P.C. Her practice focuses on employment litigation and counseling.

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