Reed Smith Client Alerts

On April 19, 2023, the Civil Rights Division of the Department of Justice (DOJ) issued guidance clarifying that when a position requires access to export-controlled information or items, that requirement is not a basis for making an employment decision based on citizenship, immigration status, or national origin. Although not a new issue for employers, the DOJ’s new guidance coincides with the agency announcing it had secured a $365,000 settlement with a private employer to resolve claims that it violated the antidiscrimination provisions of the Immigration and Nationality Act (INA) while attempting to comply with U.S. export controls.

U.S. export control requirements

Under the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR), the release of certain technical data or controlled technology to foreign persons is considered a “deemed export” and may require a license from the Directorate of Defense Trade Controls (DDTC) or the Bureau of Industry and Security (BIS). This applies even if the release occurs within the United States. Under the ITAR and EAR, a foreign person is a person who is not a U.S. citizen, lawful permanent resident, or protected individual (i.e., refugee or person granted asylum). Generally, U.S. visa holders are considered foreign persons.

To comply with U.S. export controls, U.S. employers need to (1) determine whether a potential employee is a foreign person, (2) assess whether a position requires access to ITAR-controlled technical data or EAR-controlled technology, and (3) ensure the required export authorizations or technology control plans are in place to prevent unauthorized exports.