106 Iowa L. Rev. 1993 (2021)

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Abstract

Export controls are a set of federal regulations that control the transfer of items and information with military capabilities to foreign entities and persons outside the United States as well as foreign persons within the United States. Transferring information to a foreign person within the United States is known as a deemed export, and in many instances a license is required before such a transfer is allowed. One such instance is when an employer is hiring for a position that will have access to export-controlled information, as any foreign person hired for the position may need to receive a license before beginning work. However, because the process for receiving a license can take several months and there is no guarantee a license will be granted, some employers may want to, and currently do, exclude foreign persons from applying altogether. Whether an employer violates any employment-discrimination statutes by excluding foreign persons from export-controlled positions has been debated by scholars. This Note proposes a new framework to better understand this debate. The framework divides employer approaches to hiring for export-controlled positions into five categories. This Note then applies the framework to recent job postings by institutions of higher education to show that at least some institutions are likely discriminating against applicants and otherwise unnecessarily restricting foreign persons from applying. This Note then proposes a three-step approach to prevent institutions, and other employers, from discriminating or otherwise unnecessarily restricting applicants.