Complying with Export Laws without Importing Discrimination Liability: An Attempt to Integrate Employment Discrimination Laws and the Deemed Export Rules

The federal deemed export rules prohibit certain individuals from receiving any information about certain technologies without the required license, even if those individuals are otherwise authorized to work within the United States. In other words, employers who deal with technology or software subject to export control may be considered to be illegally exporting such technology or software, simply by allowing certain foreign nationals to work with or gain information about the restricted items. This article will attempt two moderately simple tasks and one more difficult. The first task is to identify the tensions that exist between the deemed export rules and the federal anti-discrimination statutes, creating awareness about potential issues that might arise if employers use general human resources advice, while neglecting deemed export requirements. Second, the article will attempt to demonstrate how employers who want to become involved in the complex deemed export regime can do so, consistent with the federal anti-discrimination statutes. While concern exists that employers complying with the deemed export rules may be placing themselves in violation of Title VII and IRCA, this article argues that, in most cases, employment screenings for deemed export requirements should not yield liability under either Title VII or IRCA. The third task is more complex. To comply with deemed export law, an employer must obtain an employee-specific export license prior to making the restricted technology available to the foreign national. The required licenses often take months to obtain, and, it may be difficult or impossible for employers to obtain such licenses for certain employees. To comply with the deemed export requirements in a hiring or promotion context, the employer would be required to limit an employee's job responsibilities to non-export controlled work or to place the foreign national employee on unpaid leave until the government made its decision on whether to issue the license. This places the employer in the position of leaving certain tasks unperformed or requiring other employees to take on additional job responsibilities during the interim, causing project delays. Once an employer becomes involved in the deemed export regime, it has responsibilities to ensure that the employee's access to technology remains within the granted license and that all of the conditions of the license continue to be met. This article argues that, consistent with the federal anti-discrimination statutes, employers should be able, in certain instances, to choose not to hire, assign, or promote certain foreign nationals, simply because to do so would trigger the employer's involvement in the legally perilous, complex, and uncertain deemed export regime. Additionally, the article argues that employers should be allowed to engage in a cost-benefit analysis regarding whether the value added by particular job positions merits involvement with the deemed export regime. To be clear, this article does not advocate that all employers begin to consider national origin or country of citizenship when hiring. Nor does it advocate that an employer should be able to use the deemed export rules as a pretext for discrimination based on national origin or citizenship. Rather, the article demonstrates that neither Title VII nor IRCA prohibit an employer from refusing to hire an individual, if the reason for that decision is a desire to avoid becoming involved in the deemed export regime.