Legally Armed: V23N4

By Johanna Reeves, Esq.

The Intersection of U.S. Anti-Discrimination Laws with Export Controls and Federal Firearms Laws (Part 1 of a two-part series.)

Businesses that engage in manufacturing firearms, other munitions or other defense articles may think it prudent to restrict employment to U.S. persons. At first glance, this approach may seem logical. After all, the production of firearms is subject to the strict technology controls of the Arms Export Control Act (AECA), Title 22, U.S. Code, Chapter 39, its implementing regulations of the International Traffic in Arms Regulations (ITAR), Title 22 Code of Federal Regulations, Parts 120-130 and the restrictions on transfers to and possession by certain persons under the Gun Control Act of 1968 (GCA), Title 18 U.S. Code, Chapter 44.

While there are indeed statutory controls on what information pertaining to the manufacture of firearms can be shared with non-U.S. persons, or who can possess firearms, it is important that U.S. businesses take all necessary precautions to avoid violating the anti-discrimination laws that may apply to their operations. Failure to abide by these laws may result in stiff fines and penalties. In this two-part series, we will walk through the intersection of U.S. anti-discrimination laws, U.S. export control requirements, and Federal firearms laws.

I. What is Discrimination?

Before we delve into the intersection of these laws, it is important to understand the basic definition of “discrimination.” In the most general terms, to discriminate means to mark or perceive the distinguishing or peculiar features of someone or something, distinguish, to recognize or identify as separate or distinct or to make a difference in treatment or favor on a basis other than individual merit. See Merriam-Webster Dictionary, merriam-webster.com (last visited Jan. 9, 2019). Federal law prohibits unfair or unequal treatment of an individual or group because of certain characteristics, such as age, disability, ethnicity, gender, marital status, national origin, race or religion. This article focuses on employment discrimination, which happens when an employer gives different or negative treatment toward a current employee, former employee or job applicant. It is important that we draw an initial distinction though: treating a person less favorably because of inappropriate conduct or poor job performance does not amount to unlawful discrimination.

In the United States, the Congress has taken steps to protect individuals from discrimination in a wide variety of circumstances by passing a number of laws, including the Civil Rights Act, the Equal Pay act and the Americans with Disabilities Act. To delve into all anti-discrimination laws on the books would far exceed the scope of this article. For purposes of this series, we will focus on the anti-discrimination requirements that most impact compliance with export control requirements and federal firearms laws.

In particular, we will focus on the following statutes: (1) Title VII of the Civil Rights Act of 1964 (“Title VII”), Pub. L. 88-352, which makes it unlawful to discriminate against someone on the basis of national origin, among other factors; (2) the Immigration Reform and Control Act of 1986 (IRCA), Title 8, U.S. Code 1324b, which prohibits discrimination on the basis of an individual’s citizenship or immigration status; and (3) Title I of the American with Disabilities Act of 1990 (ADA), Pub. L. 101-336, which prohibits the discrimination against individuals with disabilities as defined in the statute.

A. Discrimination Based on National Origin

National Origin discrimination occurs when an applicant or employee is treated adversely because he or she is from a particular country or region, because of ethnicity or accent, or because he or she appears or is perceived to be of a certain ethnic background. National origin considers a person’s ethnicity, ancestry and place of birth. See 29 C.F.R. § 1606.1.

According to the U.S. Equal Employment Opportunity Commission (EEOC) Small Businesses Fact Sheet: National Origin Discrimination, “national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or shares the physical, cultural or language characteristics of a national origin (ethnic) group.” eeoc.gov/laws/guidance/national-origin-factsheet.cfm (last visited on Jan. 9, 2019).

Title VII of the Civil Rights Act of 1964

Title VII is enforced by the EEOC and makes it illegal to discriminate against any employee or job applicant based on national origin. Title VII applies to foreign nationals in the United States, not just U.S. persons. This means that Title VII prohibits the refusal to hire an applicant solely because that individual is not a U.S. person. In other words, employers may not deny an applicant merely because the person is not a U.S. citizen or green card holder.

There are two narrow exceptions to this blanket prohibition: (1) for U.S. national security interests; and (2) the Bona Fide Occupational Qualification (BFOQ). The Title VII national security exception states it is not unlawful for an employer to refuse to hire or decide to discharge an individual from a position because “(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and (2) such individual has not fulfilled or has ceased to fulfill that requirement.” 42 U.S. Code § 2000e-2(g). This exception, however, must be implemented in a non-discriminatory way.

The BFOQ exception of Title VII allows an employer to decide whether to employ or hire an individual based on national origin in certain instances where national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. 42 U.S.C. § 2000e-2(e). In order to establish the applicability of the BFOQ exception, the employer must be able to prove the national origin requirement is necessary to the job function and that non-U.S. persons would be unable to perform the job safely and efficiently.

For example, consider the following: an employer refuses to hire someone because the latter’s national origin makes him/her ineligible for the position because a license cannot be obtained, versus an employer refusing to hire someone because his or her national origin triggers an export license requirement and the licensing process is difficult, lengthy or costly. In the first scenario, a license is required for the position but cannot be obtained, perhaps because of an embargo or other national security prohibition, therefore making the non-U.S. person ineligible for the position. In the second instance, the decision not to hire is simply based on a matter of convenience—the non-U.S. person is eligible to be covered by a license, but the employer doesn’t want to go through the process of obtaining the authorization. Inconvenience is not a defense to national origin discrimination. We will examine this in greater depth in Part Two of this series.

Immigration Reform and Control Act (amends the Immigration and Nationality Act (INA) (8 U.S.C. § 1324b)

This law prohibits companies from hiring or firing individuals based on national origin and citizenship. Unlike Title VII, this statute does not protect persons who are not permanent residents, temporary residents, refugees or asylees with or without employment authorization. The IRCA also allows a company to prefer to hire, recruit or refer an individual who is a citizen or national of the U.S. over an alien if the two individuals are equally qualified.

The Immigrant and Employee Rights Section (IER) of the Department of Justice’s Civil Rights Division (formerly the Office of Special Counsel for Immigration-Related Unfair Employment Practices) is charged with administering and implementing the INA. It investigates claims to determine whether discriminatory conduct under the INA occurred under the following:

Citizenship or immigration status discrimination with respect to hiring, firing and recruitment or referral for a fee by employers with four or more employees.

Employers may not treat individuals differently based on citizenship or immigration status. U.S. citizens, recent permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination. Exceptions: permanent residents who do not apply for naturalization within six months of eligibility are not protected from citizenship status discrimination. Citizenship status discrimination which is otherwise required to comply with law, regulation, executive order or government contract is permissible by law.

National origin discrimination with respect to hiring, firing and recruitment or referral for a fee by employers with more than three and fewer than 15 employees.

Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent or because they are perceived as looking or sounding “foreign.” All U.S. citizens, lawful permanent residents and other work-authorized individuals are protected from national origin discrimination. The Equal Employment Opportunity Commission has jurisdiction over employers with 15 or more employees.

Unfair documentary practices related to verifying the employment eligibility of employees.

Employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents or specify certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin. U.S. citizens and all other work-authorized individuals are protected from unfair documentary practices.

Retaliation/Intimidation.

Individuals who file charges with IER, who cooperate with an IER investigation, who contest action that may constitute unfair documentary practices or discrimination based upon citizenship or immigration status or national origin or who assert their rights under the INA’s anti-discrimination provision are protected from intimidation, threats, coercion and retaliation.

See the Immigrant and Employee Rights Section of the Department of Justice’s Civil Rights Division website at justice.gov/crt/types-discrimination (last visited Jan. 9, 2019).

Neither Title VII nor the IRCA require an employer to hire someone who is not able to perform functions of the job, and employers are not obligated to provide accommodation for such employees once they are hired. Compliance with both of these laws directly impact export control licensing requirements as they apply to the hiring of foreign persons. The effect of anti-discrimination prohibitions on the employment of or decision to hire a non-U.S. person will be explored in Part Two to this article.

B. Discrimination Based on Disability

The American with Disabilities Act (ADA) makes it illegal to discriminate against a qualified individual on the basis of disability in regard to “job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training and other terms, conditions and privileges of employment.” The law also requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability, unless doing so would impose an undue hardship on the operation of the employer’s business. The ADA Title I covers private employers with more than 15 employees.

A disability under the ADA is defined as: (a) a physical or mental impairment that substantially limits one or more major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. The term includes individuals who have been rehabilitated successfully and are no longer engaging in illegal drug use; are participating in a supervised rehabilitation program and are no longer engaging in such use; or are erroneously regarded as engaging in such use. An individual who is currently engaging in the illegal use of drugs is not covered by the ADA. This particular disability protection directly impacts how companies can conduct certain screening that is necessary under the GCA to determine whether an individual may be prohibited from possession or receipt of a firearm. We will examine into this intersection in Part Two of this series.

II. Dealing with the Intersection

Anti-discrimination laws are a necessary and vital part of our legal framework and serve to prevent unlawful discriminatory practices and promote equal opportunity for all. Of no lesser importance, the laws and regulations governing the manufacture, possession and transfer of firearms and other defense articles protect our national security and public safety. In Part Two, we will walk through the controls on technology transfer and GCA possession restrictions that apply to the manufacture of firearms and other munitions and discuss how to reconcile the seemingly conflicting requirements of the ITAR and GCA. Navigating the overlap among these laws is a must for any company seeking to maintain a robust compliance program. We will examine some common questions that come up, such as:

As a manufacturer of firearms, can I require all my employees to be U.S. citizens because we work with controlled technology or technical data?

Can I have a blanket corporate policy not to assign non-U.S. citizens to certain job functions?

If an employee was born in an embargoed country and I am not able to obtain authorization to share technical data with that employee, do I have to offer accommodations to that employee because he is not able to perform his job?

Can I screen potential employees against the prohibited persons provisions of the Gun Control Act without violating the ADA?

The author extends her appreciation to the generous contributions of Katherine Heubert, Esq., at Reeves & Dola, LLP (kheubert@reevesdola.com).

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The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.

About the Author

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (reevesdola.com). For more than 15 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2011, Johanna has served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (fairtradegroup.org). She has also served as a member of the Defense Trade Advisory Group (DTAG) since 2016. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.