United States: DOJ Civil Rights Division Underscores Risk Of Discrimination Claims When Requesting Information From Applicants And Employees For Export Compliance

If you only read one thing...

  • DOJ Civil Rights Division issued a letter highlighting the risk of discrimination claims when employers request citizenship or national origin information from applicants and employees to comply with U.S. export control laws.
  • Companies should evaluate their hiring policies and procedures to ensure that they are taking appropriate steps to comply with U.S. export control laws while minimizing the risk of discrimination claims.

On March 31, 2016, the Department of Justice's Civil Rights Division (DOJ) issued a technical assistance letter (TAL) that highlights the potential for employers to create discrimination claims inadvertently when requesting and reviewing citizenship and national origin information for applicants and employees for compliance with the U.S. export control laws. While the practical implications of U.S. export control laws often require employers to obtain citizenship and nationality information in the hiring process, employers must take a cautious and narrowly tailored approach in obtaining this information and making employment decisions to avoid creating potential liability under U.S. antidiscrimination laws.

Background

Under U.S. export control laws, including the International Traffic in Arms Regulation (ITAR) and the Export Administration Regulations (EAR), employers are prohibited from employing certain "foreign nationals" in positions where they have access to "controlled technology" (also referred to as "technical data"), unless the employer obtains an export license for those employees. U.S. export control laws dictate that citizens of certain countries and individuals of certain nationalities cannot view, access or use controlled technology that is subject to the export control laws without a license. These restrictions do not apply to "U.S. persons," who are generally defined under U.S. export control laws as (i) a U.S. citizen, (ii) a U.S. lawful permanent resident or (iii) a "protected individual" (e.g., an asylee or refugee) in the United States. Although U.S. export control laws do not require any particular procedures to obtain and review citizenship and national origin information when employing or recruiting employees, as a practical matter, employers must vet applicants and employees for jobs with access to controlled technology by asking for information about their citizenship and national origin.

Employers have separate obligations to avoid violating U.S. antidiscrimination laws. For example, Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits employers from discriminating against applicants and employees on the basis of national origin, and the Immigration and Naturalization Act (INA) protects U.S. citizens and nationals, refugees, asylees, and certain recent lawful permanent residents from citizenship discrimination and national origin discrimination. Although Title VII and the INA have exceptions permitting employers to use national origin and citizenship information when required to comply with U.S. laws, such as ITAR and EAR, or in the interest of national security,1 these exceptions are narrowly construed.

Technical Assistance Letter

The TAL was written in response to an inquiry about whether employers, including staffing agencies, could ask job applicants or newly hired employees questions regarding their status as a U.S. person. In the proposed scenario, if applicants or new employees indicate that they are not a U.S. person, the employer requests that they identify their citizenship and U.S. immigration status. However, the employer also permits the applicant or new employee to opt out of these questions if they do not want to be considered for a position "whose activities are subject to Export Control Laws."

Despite the disclaimer permitting applicants and employees to bypass these questions, the DOJ cautioned employers in asking them, even if provided to "all new applicants in a nondiscriminatory manner." The DOJ found that the questions could cause "confusion among applicants or human resource personnel" when reviewing this information for jobs that are not subject to U.S. export control laws. For jobs that require access to controlled technology, the DOJ found that these questions could deter protected individuals, such as asylees and refugees, from applying for employment, because they could misconstrue their eligibility for the position (e.g., they might have a different understanding of the word "admitted").

The DOJ noted that, if all applicants or newly hired employees were asked these questions to determine whether an export license is needed, then the questions are unlikely to be discriminatory under the INA. The DOJ cautioned, however, that employers who refuse to hire individuals (or staffing agencies that limit the scope of assignments) based on the applicant's country of origin may create discrimination claims. The TAL also notes that the questions are problematic, because they could:

  • cause employers (including human resources personnel) to make unlawful assumptions about an applicant's eligibility based on his or her citizenship or national origin
  • lead rejected applicants to file discrimination claims on the belief that they were rejected because of their protected status.

The DOJ also warned employers that requesting and reviewing documentation to confirm compliance with U.S. export control laws could violate the INA's prohibition against unfair documentary practices. According to the DOJ, an employer's process for collecting documents to verify compliance with U.S. export control laws must be separate and distinct from the employer's process of collecting documents for determining eligibility for employment in the United States under the Form I-9.

Practical Implications

The TAL demonstrates the tension and pitfalls for employers in complying with both nondiscrimination laws and U.S. export control laws in the hiring process. It is important to note that the TAL is not a binding authority, and it is not indicative of how other agencies or DOJ divisions outside of the Office of Civil Rights would address violations of U.S. export control or sanctions laws. In addition, the TAL does not address discrimination claims when employers screen applicants and employees to comply with the requirements not to hire or do business with persons that have been "blacklisted" by the U.S. government on various denied party lists, including the Specially Designated Nationals and Blocked Persons List and the Denied Persons List.

The opinion, however, reveals how the DOJ's Office of Civil Rights may assess potential allegations of discrimination during investigations and enforcement actions. It can also be used as a persuasive authority for reference by a court or administrative law judge. Accordingly, employers can take the following steps to minimize the risk of discrimination claims when requesting and reviewing citizenship and national origin information for export control law:

  • Implement clear written employment and export control policies and procedures that are consistently followed and are examined for compliance with this TAL. For example, if an employer solicits citizenship or national origin information at the application stage to comply with U.S. export control laws, then all applicants that apply for those positions should be asked those same questions. Asking some applicants and not others for the same position, certain questions about their national origin or citizenship could be seen as discriminatory.
  • Request only citizenship or national origin information that is required by the export control law(s) that are applicable to the position in question. For instance, if the position requires access to information where the employer must only request and consider an applicant's citizenship and not his or her country of origin, then only request information related to the applicant's citizenship and not their country of birth or their national origin.
  • Restrict questions soliciting citizenship and national origin information to positions that have access to information subject to export control laws. Avoid blanket questions on employment applications used for a number of positions, including positions that involve technical data that is not subject to the U.S. export control laws. Employers should make reasonable efforts to confirm that controlled technology covered by U.S. export control laws may be released to the positions that are asked these questions. The statutory exemptions under Title VII and the INA may not apply when employers obtain information about citizenship and national origin for positions that are not implicated by the export control laws.
  • Confirm and modify restrictions as part of ongoing compliance efforts. Because U.S. export control laws frequently change, employers export control compliance teams should work closely with human resources to amend hiring policies and practices on an ongoing basis. For example, U.S. export control rules may modify restrictions, such that citizens from certain countries are no longer prohibited from accessing controlled technology. Similarly, controls may be removed from certain controlled technology such that positions where those controls were removed no longer require the employer to request citizenship or national origin information for export control purposes.
  • For any applicants who are not hired (or employees terminated) because they cannot access controlled technology required for a relevant position, document clearly the reasons that they were rejected or terminated. Antidiscrimination claims often arise based on miscommunication between managers and applicants/employees regarding the reasons for an adverse employment decision. For instance, a statement that an employee was not hired "because he is Chinese" is susceptible to misinterpretation. If an applicant hears this, he may assume that he was denied employment because of his Chinese national origin, while the employer, in fact, lawfully made the decision under the export control laws based on his citizenship.
  • Consider only soliciting citizenship and national origin information for export compliance purposes after a conditional offer has been made. Moving these questions to later in the recruitment process will reduce the likelihood of large class action discrimination claims, because fewer individuals will be subject to these questions.
  • Train human resources personnel and other relevant employees so that they understand the tension between employment laws and U.S. export control laws and follow the defined hiring process for complying with both sets of laws.
  • Create separate and distinct policies and procedures for requesting documentation for compliance with U.S. export control laws and requesting documentation for completing the Form I-9.

Footnote

1 See 42 U.S.C. § 1324b (a)(2)(c); 42 U.S.C. § 2000e-2(g).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.