Musk's SpaceX Cited for Using ITAR as Excuse to Discriminate

After complaining since at least 2005 that "we really need to do something about ITAR. It is really hurting U.S. industry,” and citing export controls for not hiring eligible non-citizens, South African immigrant Elon Musk's company SpaceX has been sued by the Justice Department for employment discrimination.

The United States Department of Justice has filed a lawsuit against Space Exploration Technologies Corp. (SpaceX) for discriminating against asylees and refugees in its hiring process. The lawsuit contends that from September 2018 to May 2022, SpaceX deliberately discouraged such individuals from applying for positions within the company, violating the Immigration and Nationality Act (INA).

Export Control Laws and Citizenship

According to the complaint, SpaceX made incorrect claims in job postings and public statements, asserting that federal "export control laws" permitted the hiring of only U.S. citizens and lawful permanent residents. In reality, these laws impose no such restrictions. Asylees and refugees, whose residency permissions do not expire, are equally eligible to work in the U.S. and are not required to obtain additional governmental approval to access export-controlled information and materials.

The discrimination occured across the board, according to the complaint.   In an online forum in 2016, Brian Bjelde, SpaceX Vice President of Human Resources stated  "To comply with US government space technology export regulations including ITAR applicants must generally be U.S. citizens or lawful permanent residents."  Mr. Bjelde, a veteran SpaceX mission manager and avionics engineer has been HR Chief for the past nine years.

Federal Investigation Findings

Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division stated, "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." The investigation further found that SpaceX recruiters and high-ranking officials took actions that actively discouraged asylees and refugees from seeking employment opportunities at the company.

Specific Allegations

The lawsuit delineates multiple phases in the hiring process where SpaceX allegedly discriminated:

• Discouraging asylees and refugees from applying through public announcements and online recruiting communications.  SpaceX and other SpaceX recruiters regularly told job candidates that with a few exceptions, SpaceX is only able to hire U.S. citizens or lawful permanent residents due to ITAR.
• Failing to fairly consider applications submitted by asylees and refugees and hiring exclusively U.S. citizens and lawful permanent residents. From September 2018 to May 2022, out of more than 10,000 hires, SpaceX hired only one individual who was an asylee and identified as such in his application
• Refusing to hire qualified asylee and refugee applicants due to their citizenship status. SpaceX repeatedly rejected applicants who identified as asylees or refugees because it "believed that they were ineligible to be hired due to ITAR."
• Between September 2018 and September 2020, hiring exclusively U.S. citizens and lawful permanent residents. From September 2018 to May 2022, out of more than 10,000 hires, SpaceX hired only one individual who was an asylee and identified as such in his application

The positions at issue encompass a wide range of vocations, including but not limited to welders, software engineers, rocket engineers, and business analysts.  

Legal Framework

The INA prohibits employers from discriminating against asylees and refugees unless explicitly required or permitted by law, regulation, executive order, or government contract. The lawsuit affirms that no such stipulations apply to SpaceX in this instance.

Remedies and Relief

The U.S. government seeks back pay for those deterred or denied employment at SpaceX due to the alleged discrimination. It also seeks civil penalties, the amount of which will be determined by the court, and mandates policy changes to ensure compliance with the INA moving forward.