New resource helps employers avoid immigration-related discrimination when complying with export control laws
The U.S. Department of Justice announced Tuesday that it has secured a settlement agreement with General Motors (GM) to resolve the department’s determination that GM discriminated against non-U.S. citizens in violation of the Immigration and Nationality Act (INA). The department also announced the release of a new fact sheet to help employers avoid citizenship status discrimination when complying with export control laws, which govern U.S. companies’ ability to export certain goods and software, technology and technical data. The department’s investigation of GM revealed that the company’s violations stemmed in part from its failure to properly consider the INA’s nondiscrimination requirements when also complying with export control laws.
“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,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “When employers commit unlawful discrimination, the Civil Rights Division will continue holding them accountable. The Civil Rights Division is issuing a new fact sheet to help educate employers and promote greater compliance with anti-discrimination law going forward.”
Under export control laws and regulations, such as the International Traffic in Arms Regulations and the Export Administration Regulations, all “U.S. persons” working at U.S. companies can access export-controlled items without authorization from the U.S. government. U.S. persons under these laws include U.S. citizens, U.S. nationals, lawful permanent residents, refugees and asylees. An employer might need authorization from the State Department or the Commerce Department to share or release export-controlled items to workers who are not U.S. persons. To confirm if an employer needs to request authorization for an employee to access export-controlled information, the employer might need to obtain a worker’s citizenship or immigration status information to determine whether they are a “U.S. person.” This process is referred to as an “export compliance assessment.”
The department’s investigation determined that until at least September 2021, GM’s export compliance assessments unnecessarily required lawful permanent residents to provide an unexpired foreign passport as a condition of employment, imposing a discriminatory barrier on them in the hiring process. From at least July 2019 until May 2021, GM improperly combined its process for verifying workers’ permission to work in the United States with its export compliance assessment, which resulted in GM unnecessarily requiring that newly hired non-U.S. citizens provide specific and unnecessary documents to prove their permission to work.
Under the terms of the agreement, GM will pay $365,000 in civil penalties to the United States. The agreement also requires GM to train its personnel on the INA’s requirements, revise its employment policies and be subject to departmental monitoring and reporting requirements. Specifically, GM must separate its process to verify permission to work in the United States from its export compliance assessment process, and stop requiring lawful permanent residents to present foreign passports as a condition of employment.
The INA’s anti-discrimination provision generally prohibits employers from discriminating based on citizenship, immigration status or national origin during the hiring process, including by imposing unnecessary documentary demands as a condition of employment. This law also prohibits employers from asking for more documents than necessary or specific documents when checking an employee’s permission to work because of citizenship, immigration status or national origin. Federal law allows workers to choose which valid, legally acceptable documentation to present to demonstrate their identity and permission to work, regardless of citizenship, immigration status or national origin. As explained in the fact sheet issued Tuesday, these employer obligations do not change when complying with export-control laws and regulations.
The Civil Rights Division’s Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the INA. Among other things, the statute generally prohibits discrimination based on citizenship status and national origin in hiring, firing or recruitment or referral for a fee; unfair documentary practices; retaliation and intimidation.
To find more information on how employers can avoid discrimination when complying with export control requirements visit IER’s website at www.justice.gov/ier. Applicants or employees who believe they were discriminated against based on their citizenship, immigration status, or national origin in hiring, firing, recruitment or during the employment eligibility verification process (Form I-9 and E-Verify); or subjected to retaliation, may file a charge. The public can also call IER’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); or email IER@usdoj.gov.
