DOJ Provides Anti-Discrimination Guidance for Export Control-Related Jobs
Companies should be wary about asking questions related to citizenship status and national origin when hiring personnel for positions subject to export control laws, said the Justice Department’s Civil Rights division in a March 31 letter sent in response to a lawyer’s inquiry. DOJ provided the guidance in a letter responding to Morgan Lewis attorney Eric Bord, who asked about a series of hypothetical questions related to a potential employee's immigration status, to be asked when hiring for positions dealing in export controls
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Legally, companies cannot discriminate in employment practices against "protected persons." U.S. citizens and nationals, refugees, asylees, and recent lawful permanent residents are protected from citizenship status discrimination, and are also considered "U.S. persons" under the International Traffic in Arms Regulations. The ITAR requires that employers get export licenses for non-U.S. employees if their positions require access to the ITAR, but it does not impose hiring requirements related to immigration status. The letter drafted by Civil Rights Division Deputy Special Counsel Alberto Ruisanchez said that individuals protected from citizenship status discrimination, such as refugees, may be deterred from applying for a position if those questions are asked, because of a misunderstanding about their eligibility for a position.
“To the extent an employer (including a staffing agency) asks the questions you propose of all job applicants or new hires to determine only whether the employer (including a staffing agency’s client) will need an export license for certain individuals for particular positions, it is unlikely that the employer would violate the INA’s [Immigration and Nationality Act’s] prohibition against citizenship status discrimination,” the letter says. But employers who deny an application based on a candidate’s answers may be engaging in citizenship status discrimination, the letter says.
The proposed questions “raise concerns” about the immigration law’s prohibition of national origin discrimination, the letter says. Additionally, human resources personnel who assume an applicant’s eligibility based on his or her country of citizenship could make unlawful hiring decisions or show a hiring preference based on national origin, the letter says. “Your proposed questions could also lead rejected applicants who disclosed their country of citizenship in response to [a] proposed question to believe that they were denied employment due to their actual or perceived national origin and file a discrimination charge."
Ruisanchez said Bord’s proposals conflict with documentary practices in the employment eligibility verification process, and he cited 2010 DOJ guidance which said a document verification process to determine a new employee’s immigration or citizenship status, in order to comply with export control laws, is unlikely to violate anti-discrimination provisions of the INA, as long as the document verification process is “separate and distinct” from the employment eligibility verification process. “However, we caution employers that to the extent these separate and distinct processes appear to be integrated, such as due to proximity in time, employees and human resources personnel may have the impression that the documentary requests are for employment eligibility verification purposes,” the letter says.