Comment by endisneigh | Hacker News Reader

Comment by endisneigh | Hacker News Reader

maybe I need to read this again more carefully but I fail to see what SpaceX is doing wrong here.

This:

> Because SpaceX works with certain goods, software, technology and technical data (referred to here as export-controlled items), SpaceX must comply with export control laws and regulations, including the International Traffic in Arms Regulations and the Export Administration Regulations. Under these regulations, asylees, refugees, lawful permanent residents, U.S. citizens and U.S. nationals working at U.S. companies can access export-controlled items without authorization from the U.S. government. Therefore, these laws do not require SpaceX to treat asylees and refugees differently than U.S. citizens or green card holders. Find more information here on how employers can avoid discrimination when complying with export control requirements.

Seems to be the issue.

But why would it be against the law for a US company to discriminate against someone without valid immigration status? I assume the issue here is a refugee has some authorization for lawful employment and SpaceX still doesn't want to hire them wholesale, hence the suit.

IMHO the United States' convoluted immigration and refugee policy is to blame. Why not triage everyone to being "legal permanent resident" and remove the distinction between refugee/asylee and other types of lawful residents? I'd need to read more but ultimately they're a lawful resident or not. What's the point of considering them a "refugee" if they're entitled to the same benefits as a lawful resident anyway? Either we trust them enough to be in this country and therefore be entitled to the benefits that entails, or not.

> The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to discriminate with respect to hiring, firing, or recruitment or referral for a fee, based upon an individual's citizenship or immigration status.

https://www.eeoc.gov/national-origin-discrimination

The Civil Rights Act also prohibits discrimination on national origin.

Obviously the CRA does not mean you have to hire blind people to be truck drivers. You do have to provide reasonable accommodation for jobs they can do. If you circumvent the reasonable accommodation requirement by eg barring people by immigration status for jobs where it is irrelevant, you're breaking the law.

... unless the U.S. Government restricts those roles to US citizens or green card holders.

...yes. Like preventing blind people from driving.

> But why would it be against the law for a US company to discriminate against someone without valid immigration status?

Both asylum and refugee status are valid immigration statuses. Why do you assert that they aren’t?

I'm not saying they're not. I'm saying there doesn't need to be a distinction in capabilities. Asylees/refugees cannot do all the same things as permanent residents. This is the confusion and thus the reason for the actions SpaceX took.

But if they can't do all the same things, why not just only hire permanent residents? As an employer, especially SpaceX the intersection between the job responsibilities and capabilities creates unnecessary confusion. If you hire them to do X, which sometimes requires access to Y, but Y isn't something refugees are supposed to do, is it a shock they'd rather just hire people who can do everything?

It's a problem the state created for themselves. Suppose SpaceX took the other position and treated them equivalently. Then they'd be getting sued about how refugees are doing {some thing they're not supposed to} and how they should've conducted more due diligence.

in any case it seems like SpaceX err'd in the wholesale discouragement of refugees from applying. it didn't seem specific to role or responsibilities.

>But if they can't do all the same things, why not just only hire permanent residents?

I'm sure you can think of a few reasons if you consider it.

It's the "permanent" bit. Being an asylee or refugee isn't necessarily a permanent status - like if your home country gets out of a civil war or a coup leader ends the coup and goes into exile, you no longer need to fear for your life if you go back.

> If you are a refugee, you are required by law to apply for permanent resident status 1 year after being admitted to the United States in refugee status. If you are an asylee, you are not required to apply for permanent resident status after being granted asylum for 1 year.

And this happens. When I was in grad school I knew a Lithuanian refugee. He was a fellow student - came when he was younger (high school?), but still on a refugee status by the time he entered grad school. And at the time he was fighting off being sent back to Lithuania because apparently conditions had improved back there.

The real problem was that his parents and most of his family had obtained the green card by that point, and for whatever reason there were delays in processing him. So only he would be forced to return.

The law for immigration status in hiring is that you can't discriminate on the basis of it unless the government requires you to. The government's saying both that ITAR doesn't actually restrict asylees and refugees, and also that not being a "US person" under ITAR isn't really a bar that should count (you can get approval from the government for non-US persons to work on export-controlled stuff, or have them work on other things).

You can tell they're really hanging their hat on the first one, though: even if you say for simplicity you want to have only "US persons" under ITAR, that doesn't justify excluding asylees and refugees.

Among the evidence in the filing is, of course, an Elon Musk tweet, saying you need at least a green card to work at SpaceX.

Also, the numbers: over the course of about four years SpaceX hired exactly one asylee, and that one shortly after they were told they were under investigation.

Are there a large number of rocket scientists and/or communications experts in the asylum/refugee pool applying at Space-X? I'm not intending to be snarky, but my guess is the relative pool may not be that large. Of course there are lower-level jobs (janitorial, catering, etc) that may not require the same kinds of clearance.

All said, I can understand the mistake in terms of interpretation of the regulation.

I don't know how many people we're talking about. In absolute terms I'm sure it's not a huge number. The filing lists a few anecdotal cases.

Part of the complaint is also that they publicly stated that you need citizenship or a green card many times over the years, so there were probably people improperly deterred from applying at all.

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