Export control and antidiscrimination law

Here’s one for all the Human Resources professionals out there. The U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (the “OSC”) has issued a response to a request for guidance regarding complying with antidiscrimination laws (specifically under the Immigration and Nationality Act, or “INA”) when verifying employees’ citizenship status under U.S. export control laws, including the EAR and the ITAR.

It is important to note that DOJ-OSC clarified that the ITAR does not impose requirements on U.S. companies concerning the employment of foreign persons. Rather, the ITAR requires that employers obtain export licenses for non-U.S. Person employees if their positions require access to data controlled by the ITAR.

The OSC confirmed that an employer that implements a document verification process to determine only a new employee’s immigration or citizenship status to comply with export control laws is unlikely to violate the antidiscrimination provision, if the document verification process is separate and distinct from the employment eligibility process.

In its advisory response, DOJ-OSC affirms that companies who are hiring for positions that would require access to export controlled data can ask questions related to citizenship and immigration status to ascertain whether an export authorization would be required for the new hires without violating any antidiscrimination statutes, but did caution that questions regarding citizenship and immigration status should not be asked of all new applicants for positions not subject to export control restrictions.

Even with this advice from DOJ-OSC, it is still critical for employers to remember that “access” to export controlled data is not always limited to product or project, but additional qualifiers (e.g., access to company database which contains export controlled data; access to data at workstations on shop floors, etc.). All of these factors must be considered in advance of interviews for any company dealing with export-controlled products or information.