Federally Mandated Discrimination

The Irreconcilability of Civil Rights and Export Control

Although Title VII has protected employees from discrimination since 1964, the International Traffic in Arms Regulations and Export Administration Regulations create startling liability for businesses dealing in “export-controlled technology”—strategically important technology, services, and information that are safeguarded for foreign policy reasons and national security concerns. By requiring employers to verify whether an employee is a “foreign person” before being employed to work with export-controlled technology, employers must ask about national origin under the ITAR and EAR, but they must not inquire about employees’ national origin under the IRCA and Title VII. After outlining the legal foundations of this problem, this Note examines the implications of these contradictory laws by applying them to a hypothetical company producing export-controlled technology. Upon demonstrating that current scholarly suggestions are insufficient to solve this problem, this Note recommends that antidiscrimination laws must govern. To ameliorate the tension between antidiscrimination laws and the protection of foreign policy reasons and national security concerns, this Note advocates for third-party background and security clearances in instances of classified technology.

The full text of this Note is available to download as a PDF.