Uncle Sam accuses SpaceX of not considering asylees and refugees for employment

Discrimination lawsuit claims company's 'ITAR' excuse was badly wrong

Fresh from blowing up a small portion of Texas with Starship, SpaceX is once again being forced to focus on more earthly matters, like discriminatory hiring practices, in a lawsuit brought by the US Department of Justice.

The complaint [PDF] filed Wednesday through the Office of the Chief Administrative Hearing Officer, part of the department's Executive Office for Immigration Review, accuses SpaceX of discriminating against asylees and refugees and "routinely" discouraging people with this citizenship status against even applying for roles at the company.

We're all used to CEO Elon Musk saying things of dubious veracity as the owner of Twitter X, but in this case the DoJ claims that statements from both SpaceX and its boss were so wrong they broke federal law, specifically the Immigration and Nationality Act (INA). The rules stipulate that asylees and refugees cannot be discriminated against for their citizenship status in the process of applying for job.

SpaceX fell foul of the law, the DoJ alleges, because it repeatedly and incorrectly claimed it could only hire US citizens and lawful permanent residents, thereby discouraging asylees and refugees from even bothering. Between September 2018 and May 2022, it was accused of tracking applicants by citizen status and marking asylees and refugees as ineligible for employment under the International Traffic in Arms Regulations (ITAR).

Explaining why this was way off-piste, the DoJ said in a statement yesterday: "Under these regulations, asylees, refugees, lawful permanent residents, US citizens and US nationals working at US companies can access export-controlled items without authorization from the US government. Therefore, these laws do not require SpaceX to treat asylees and refugees differently than US citizens or green card holders."

The DoJ added that asylees and refugees "undergo thorough vetting by the United States government. Under the INA, employers cannot discriminate against them in hiring, unless a law, regulation, executive order or government contract requires the employer to do so. In this instance, no law, regulation, executive order or government contract required or permitted SpaceX to engage in the widespread discrimination against asylees or refugees that the department's investigation found."

The complaint alleges that SpaceX's incorrect stance went right to the top, highlighting a number of times where Musk said that the working at the company was off-limits to anyone who wasn't a US citizen or lacked a green card.

On June 16, 2020, Musk posted on Twitter: "US law requires at least a green card to be hired at SpaceX, as rockets are considered advanced weapons technology."

It also said that during an international space conference in September 2016, "SpaceX's CEO stated the SpaceX had to comply with ITAR, which meant that a normal work visa is insufficient to work at SpaceX unless the company can obtain 'special permission from the Secretary of Defense or Secretary of State.' He then added that SpaceX is 'not allowed' to hire people who don't have a 'green card' and that 'unless [you] can somehow get a green card, we are legally prevented from hiring anyone.'"

In an online video dating all the way back to 2012, the complaint quoted Musk as saying: "It's quite difficult for us to employ people that don't have a green card because of US ITAR rules." He added that his "first advice" to non-US citizens hoping for a job at SpaceX would be: "Do anything you can to get a green card."

The complaint also claimed that SpaceX's Vice President of Human Resources said on an online chat forum in 2016: "To comply with US government space technology export regulations including ITAR, applicants must generally be US citizens or lawful permanent residents."

The DoJ points out that not everyone working at SpaceX is a rocket scientist, also employing "welders, cooks, crane operators, baristas and dishwashers... The jobs at issue in the lawsuit are not limited to those that require advanced degrees."

Assistant Attorney General Kristen Clarke of the Justice Department's Civil Rights Division said: "Our 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.

"Our investigation also found that SpaceX recruiters and high-level officials took actions that actively discouraged asylees and refugees from seeking work opportunities at the company.

"Asylees and refugees have overcome many obstacles in their lives, and unlawful employment discrimination based on their citizenship status should not be one of them. Through this lawsuit we will hold SpaceX accountable for its illegal employment practices and seek relief that allows asylees and refugees to fairly compete for job opportunities and contribute their talents to SpaceX's workforce."

The suit seeks "fair consideration and back pay for asylees and refugees who were deterred or denied employment at SpaceX due to the alleged discrimination," civil penalties to be determined in court, and policy changes to ensure the company does not flout the INA again.

It could be that SpaceX has been erring on the side caution when it comes to ITAR because it has a number of lucrative contracts with NASA and the US Department of Defense. Accidental violation of export control laws and regulations could indeed put such contracts at risk.

However, by law, asylees and refugees should never fall under these restrictions, thus the DoJ believes SpaceX has, for lack of a better term, done goofed.

The Register has asked SpaceX to comment. ®

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