By: Bruce Buchanan, Sebelist Buchanan Law

The Immigrant and Employee Rights Section (IER) of the Civil Rights Division of the Department of Justice has reached a settlement with Arnold & Porter Kaye Scholer LLP (Arnold & Porter) and Law Resources Inc., a legal staffing company, resolving claims that the companies engaged in hiring discrimination based on citizenship status.

The settlement resolves claims that Law Resources, at Arnold & Porter’s direction, screened out U.S. citizens with dual citizenship and non-U.S. citizens with work authorization, from a document review project because of their citizenship status, in violation of the anti-discrimination provision of the Immigration and Nationality Act (INA).

The investigation began after a U.S. citizen with dual citizenship filed a discrimination complaint against Law Resources, which led IER to open an independent investigation of Arnold & Porter. The investigation determined Arnold & Porter asked Law Resources to restrict its hiring of individuals for assignment to a project to U.S. citizens, who were not also citizens of another country. This request for a U.S. citizenship restriction was based on Arnold & Porter’s mistaken belief, in good faith, that only such U.S. citizens could be hired for the project due to data access restrictions contained in the International Traffic in Arms Regulations (“ITAR”). These regulations place certain conditions on the disclosure of ITAR controlled information to anyone who is not a “U.S. person,” as defined in ITAR. The IER determined that neither Arnold & Porter nor Law Resources had a legal basis for the citizenship hiring restrictions.

Law Resources and Arnold & Porter implemented the citizenship status restriction in the fall of 2018 and removed two dual citizen candidates from consideration because of their citizenship status and refused to consider non-U.S. citizen candidates because of their citizenship status. The investigation also concluded that after the complainant objected to the citizenship status restriction, Law Resources separately retaliated against her by placing her on a list of people not to be hired in the future.

The issues involving hiring employees where the issue of ITAR is present are complicated. I suggest that readers review Practice Pointer: Managing Export Control Issues in the Hiring Process by AILA’s Verification & Documentation Liaison Committee (AILA Doc. 20022532 (2/25/20). As stated in the Practice Pointer, no license is needed for “U.S. Persons,” defined to include U.S. citizens and nationals, lawful permanent residents, asylees, and refugees. However, certain job applicants (e.g., H-1B nonimmigrants, adjustment of status applicants, DACA and TPS beneficiaries, etc.) may be authorized for employment but not eligible for an ITAR license due to their country of nationality.

Employers subject to ITAR export control regulations can either (1) hire applicants, complete the Form I-9 process, and then determine if licenses are necessary and available to qualify new hires for access to sensitive information or (2) carefully screen all applicants, prior to making a job offer for export control positions in a non-discriminatory manner to determine which applicants might require licensure. In the Practice Pointer, it states if an employer chooses to screen prior to hire, the screener must ensure a job applicant clearly understands that the screening questions are solely for ITAR purposes.

Under the terms of the settlement agreement, Arnold & Porter and Law Resources will jointly pay a civil penalty of $56,500 for the discrimination claims while Law Resources will separately pay an additional civil penalty of $3,000. Additionally, Law Resources shall offer $11,875 in back pay to the affected worker to resolve the retaliation claim in exchange for a release of claims against Law Resources and Arnold & Porter. The parties will also jointly offer up to $2,200 in back pay to each eligible Claimant as determined by IER, up to a maximum of $55,000 for all Claimants.

Additionally, Arnold & Porter and Law Resources shall review its existing employment policies and revise them to prohibit discrimination in the recruitment, hiring, and termination processes, including for assignment or employment to work on matters that involve ITAR, on the basis of citizenship, immigration status, and national origin, except where required to comply with law, regulation, executive order, or government contract. Arnold & Porter and Law Resources shall train relevant employees about the proper definition of a “U.S. person” for purposes of complying with ITAR, through attendance at an online IER webinar; post IER posters informing workers of their rights under the INA’s antidiscrimination provision; and be subject to departmental monitoring for 2 years.

If you want to know more about issues of immigration status discrimination and retaliation, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.