On August 24, 2023, the U.S. Justice Department filed a lawsuit against Space Exploration Technologies Corporation, also known as SpaceX, for discriminatory hiring practices. The Justice Department alleges that SpaceX has discriminated against asylees and refugees as the company has routinely discouraged these workers from applying and has refused to hire or consider them for open positions from at least September 2018 to May 2022. This discrimination has been based on their citizenship status and violates the Immigration and Nationality Act (INA).

The Immigrant and Employee Rights Section (IER) of the Justice Department’s Civil Rights Division is responsible for overseeing and enforcing the anti-discrimination provisions of the Immigration and Nationality Act. These provisions define what is discriminatory conduct under the INA.

According to the Immigration and Nationality Act’s (INA) anti-discrimination provision, 8 U.S.C. § 1324b, the following are considered prohibited discriminatory conduct:

1. Citizenship status discrimination with respect to hiring, firing, and recruitment or referral for a fee by employers with four or more employees;
2. National origin discrimination with respect to hiring, firing, and recruitment or referral for a fee by employers with four to 14 employees;
3. Unfair documentary practices related to verifying the employment eligibility of employees; and
4. Retaliation/Intimidation as employers of any size are not allowed to intimidate, threaten, coerce, or retaliate against individuals who have filed charges with or cooperated with the IER.

SpaceX, for over several years, has wrongly claimed in job postings and public statements that under the “export control laws” of the federal regulations, only U.S. citizens and lawful permanent residents could be hired. However, these “export control laws” impose no such hiring restrictions. It should be noted that asylees and refugees have permission to live and work in the United States, and these rights do not expire. In fact, asylees and refugees have the same rights as US citizens and lawful permanent residents when it comes to work authorization. Companies like SpaceX have the ability to hire asylees and refugees for the same positions for which they would hire U.S. citizens or permanent residents. Under the “export control laws,” once hired, asylees and refugees can access the same export-controlled information and materials without additional government approval, just like U.S. citizens and lawful permanent residents.

According to Assistant Attorney General Kristen Clarke, the “investigation found that SpaceX failed to fairly consider or hire asylees and refugees because of their citizenship status and imposed what amounted to a ban on their hire regardless of their qualification, in violation of federal law.” It was also found that “SpaceX recruiters and high-level officials took actions that actively discouraged asylees and refugees from seeking work opportunities at the company.” With this lawsuit, the Justice Department hopes to hold SpaceX accountable for the illegal employment practices it has engaged in and seeks relief to allow asylees and refugees the opportunity to fairly compete for job opportunities.

The lawsuit further alleges that SpaceX discriminated against asylees and refugees based on their citizenship status at multiple different stages of the hiring process. For example, public announcements, job applications, and other online recruiting communications excluded asylees and refugees, discouraging them from applying for open positions. SpaceX also failed to fairly consider applications submitted by asylees and refugees and refused to hire qualified asylee and refugee applicants. It is alleged that from September 2018 to September 2020 only U.S. citizens and lawful permanent residents were hired by SpaceX.

Under the INA, employers cannot discriminate against asylees and refugees in the hiring process, unless there is a law, regulation, executive order, or government contract that requires the employer to do so. The IER is charged with enforcing the anti-discriminatory provisions of the INA. The INA generally prohibits discrimination based on citizenship status and national origin when hiring, firing or recruiting.

In order to avoid discrimination when engaging in hiring and recruitment processes, especially when navigating the immigration processes involved, it is best to coordinate with an experienced attorney. For over 25 years, Reddy Neumann Brown PC has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when dealing with PERM based recruitment.

By: Jessica Palarca

Jessica Palarca is an attorney in Reddy Neumann Brown’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.

Jessica earned her J.D. from the University of Houston Law Center in 2009 and was admitted into the Texas bar the same year.  As the child of two immigrant parents, Jessica found her passion for immigration law early in her career.  With over a decade of experience in both the private and non-profit sectors, she brings a different perspective to each case she handles.  Through the years, Jessica has learned that to achieve the best possible results for each individual served, one must keep things simple and provide personalized attention and care to each case.