News from Reeves & Dola, LLP |
When Export Controls Intersect with
Anti-Discrimination Laws
----
The General Motors Case
“Export control laws do not justify or authorize an employer to discriminate against non-U.S. citizens in violation of the Immigration and Nationality Act....”
-- Assistant Attorney General Kristen Clarke,
U.S. Department of Justice Civil Rights Division, Apr. 18, 2023
The United States Department of Justice (DOJ), Civil Rights Division, Immigrant and Employee Rights Section (IER) recently settled a case with General Motors (GM) related to alleged unfair employment practices prohibited under the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b. According to IER, the unfair employment practices stemmed from the company's export compliance assessments which bled into the hiring process. The Settlement Agreement states that from at least July 1, 2019, until May 12, 2021, GM personnel engaged in a pattern or practice of unfair documentary practices on the basis of citizenship status by requesting non-U.S. citizen new hires provide more documents than required by law during the employment eligibility verification process, a violation of 8 U.S.C. § 1324b(a)(6). IER also found reasonable cause to believe that from at least July 1, 2019, until at least September 2021, GM discriminated against lawful permanent residents based on their citizenship status by requiring them to provide unnecessary documentation (i.e., an unexpired foreign passport) as a condition of employment, a violation of 8 U.S.C. § 1324b(a)(1)(B). GM was fined a civil penalty of $365,000 and must conduct training on the INA, revise its employment policies, and comply with monitoring and reporting requirements.
This case illustrates the challenges companies may face when U.S. export controls intersect with anti-discrimination laws. DOJ's bottom line message is that the employer obligations under the INA’s anti-discrimination provisions do not change when complying with export control laws and regulations. But this may be easier said than done.
U.S. export controls restrict an employer's ability to export technical data or technology under either the U.S. Department of State's International Traffic in Arms Regulations (ITAR) or the Commerce Department's Export Administration Regulations (EAR), depending on the classification of the items involved. Both sets of regulations treat the release of export-controlled information to anyone who is not a "U.S. person" as an export. A "U.S. person" includes U.S. citizens, U.S. nationals, lawful permanent residents, refugees and asylees. Thus, before releasing export-controlled information to employees who are not U.S. persons, an employer may need authorization from either the U.S. Department of State under the ITAR, or the U.S. Department of Commerce under the EAR.
However, U.S. export controls do not provide a blanket waiver for employers to engage in discriminatory practices in violation of laws such as the INA, the statute at the center of the GM case. The INA generally prohibits employers from discriminating based on citizenship, immigration status or national origin during the hiring process. This includes imposing unnecessary documentary demands as a condition of employment or when checking an employee’s permission to work because of citizenship, immigration status or national origin. So, while both the ITAR and EAR may require authorization for the employment of a non-U.S. person, neither impose a prohibition on hiring non-U.S. persons. The only prohibition is that access to export-controlled items must not be provided unless and until proper export authorization is in place. Therefore, a company can hire a non-U.S. person to fill a job that requires access to export-controlled information, but the company may not provide access to such information until the proper export authorization is received.
DOJ Guidance to Employers
For example, when filling jobs that involve access to export-controlled items, the DOJ advises against limiting hiring or recruiting based on national origin, citizenship, or immigration status, unless required by a law or regulation, government contract, or executive order. Other best practices include:
- Don't state in job advertisements or otherwise tell job applicants that export control regulations require applicants to have a specific citizenship, immigration status, or national origin.
-
Don't use the ITAR or the EAR as a reason to limit jobs to candidates with certain citizenships, immigration statuses, or national origins. In other words, DO NOT LIMIT JOBS TO U.S. CITIZENS BECAUSE THE JOB INVOLVES ACCESSING EXPORT-CONTROLLED ITEMS.
- When discussing export control requirements with job candidates and current employees, make clear that U.S. persons include more than U.S. citizens. For example, if an applicant provides documentation showing lawful permanent residency status, that individual is considered a U.S. person for export control purposes and no further documentation is necessary to prove eligibility.
-
Do not combine export compliance assessment with the Form I-9 process, as the latter is to confirm whether someone has permission to work in the United States, not for checking proof of citizenship or immigration status. It is a violation of the INA if, during the I-9 process, an employer limits a worker's choice of documents from the Lists of Acceptable Documents, requests more or different documents than necessary, or rejects valid documentation that reasonably appears to be genuine.
While the DOJ's fact sheet could be a very useful compliance tool, we caution that the fact sheet is limited to the INA and does not address other federal laws that prohibit discrimination based on citizenship, immigration status, or national origin, such as Title VII of the Civil Rights Act of 1964, or state or local laws. We caution employers to consult with legal counsel experienced in these areas.
|
The above alert is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this alert does not establish an attorney-client relationship.
Questions about this alert may be directed to:
Johanna Reeves: 202-715-9941, jreeves@reevesdola.com
Katherine Heubert: 202-715-9940, kheubert@reevesdola.com
|
Reeves & Dola is a Washington, DC law firm that specializes in helping clients navigate the highly regulated and complex world of manufacturing, sales and international trade of defense and commercial products. We have a deep understanding of the Federal regulatory process, and use our expertise in working with a variety of Federal agencies to assist our clients with their transactional and regulatory needs. |
Reeves & Dola, LLP
1775 I Street, NW, Suite 1150
Washington, DC 20006
202-683-4200
info@reevesdola.com
|
|
|
|
|
|
|
