Those Tricky Anti-Discrimination Laws – The Proper Approach to Foreign Nationals

When hiring new employees, navigating anti-discrimination laws and export control laws can be tricky. The Department of Justice (DOJ) in March of this year provided additional guidance on how to “comply with the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b and verify “employees’ citizenship status under U.S. export control laws.” DOJ specifically addressed whether an “employer may require employees to present documents establishing their citizenship, or immigration status, to ensure the employers’ compliance with U.S. export control regulations”, such as the EAR and ITAR. The primary question the guidance addressed is the extent to which an employer may ask prospective new hires about their country of origin.

The DOJ strongly discourages employers from asking all prospective employees country of origin questions. Even for positions subject to export control regulations, the DOJ cautions that “asking job applicants questions about their immigration or citizenship status… may deter individuals who are protected from citizenship status discrimination, such as refugees and asylees, from applying due to a misunderstanding about their eligibility for the position.” Likewise, if a “staffing agency were to limit the potential assignments based upon a protected individual’s answers… the employer may be engaging in citizenship status discrimination.”

The DOJ explained that simply asking such questions is unlikely to “violate the INA’s prohibition against citizenship status discrimination…”  However, “if an employer were to reject a protected individual’s application based on that individual’s answers… or to limit the scope of potential assignments… the employer may be engaging in citizenship status discrimination.”

The DOJ also outlined the potential impact of asking such questions on human resources personnel decision making, and on rejected applicants understanding of the reason for the rejection. Specifically, the DOJ warned that asking such questions “could lead to unlawful hiring decisions by human resources personnel who make assumptions about an applicant’s eligibility based on his or her country of citizenship, or show a preference in hiring based on national origin.” Likewise, such a question could lead a rejected applicant to “believe that they were denied employment due to their actual or perceived national origin, and could subsequently file a discrimination charge.”

The DOJ guidance concluded with a warning on the “prohibition against unfair documentary practices in the employment eligibility verification process, 8.U.S.C. § 1324b(a)(6).” The DOJ explained if an employer implements a document verification process “to determine only a new employee’s immigration or citizen ship status to comply with the export control laws”, the employer is “unlikely to violate the anti-discrimination provision.” However, if an employer decides to implement such a document verification process, it is important to keep it distinct from the employment eligibility verification process. The DOJ warned that to the extent that such processes appear 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” and run the risk of violating 8.U.S.C. § 1324b(a)(6).

Given the potential difficulties of navigating employment and export control laws, it is advisable to:

  1. Implement hiring policies prohibiting the inquiry of an applicant’s country of origin during the initial hiring phase;
  2. Maintain a clear distinction between the employment verification process from the document verification process; and
  3. Establish a notification system for HR to be aware when a position may require an export license and follow up accordingly via application for an export license for non-U.S. persons should those circumstances apply.

It is important to remember that if a new employee is hired for a position that falls under export control laws, and the new employee is a non-U.S. person, the appropriate course of action is to apply for an export license. Attempting to avoid the need for a license by screening applicants based on country of origin runs a significant risk of violating employment law.

By: Adrienne Braumiller, Partner