Elon Musk Launches Countersuit Against DOJ for SpaceX Immigration Discrimination Claim
You've heard of SpaceX, short for Space Exploration Technologies Corp (one of Elon Musk's many ventures). Founded in 2002, the company's stated goal is to reduce space transportation costs and make space exploration more accessible.
While Musk has been spending plenty of time at court based largely on his newfound ownership of Twitter (which he renamed "X"), he has plenty of litigious love to go around. When the U.S. Department of Justice filed a lawsuit against him for his space company's hiring practices, he decided to not only defend that case but bring his own countersuit under a different legal theory altogether.
Let's recap the complaints on both sides.
DOJ Alleges Discrimination
The DOJ filed a complaint with the Executive Office for Immigration Review (EOIR) accusing SpaceX of discriminating against job applicants who were under asylum or refugee status at various stages of the company's hiring process, in violation of the Immigration and Nationality Act (INA).
The complaint emphasized that individuals such as asylees, refugees, and lawful permanent residents (LPRs, also known as greencard-holders) have rights to equal consideration in the hiring process. The INA prohibits employers from undermining or rejecting job applicants based on their citizenship or immigration status. This kind of discrimination is prohibited throughout the entire hiring process: recruitment, screening, interviewing, and the final hiring decision.
The DOJ gave examples of SpaceX's "facially discriminatory" public statements. These included a 2020 Twitter post by Musk saying, "U.S. law requires at least a green card to be hired at SpaceX, as rockets are advanced weapons technology." He also stated at a 2016 international space conference that SpaceX had to comply with the International Traffic in Arms Regulations (ITAR), which place strict restrictions on the transfer of defense technology and information to foreign persons and entities. He said that this 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." Apart from Musk, other SpaceX officials have also made similar public statements. It is not clear whether Musk's statements arose from his own beliefs or that of his legal team.
The complaint laid out SpaceX's hiring practices, which are run out of its headquarters in Hawthorne, California. The company engages in nationwide recruitment through career fairs, online forums, and discussions with hiring managers.
According to the complaint, from 2014 to 2020, SpaceX recruiters often informed candidates that the company could only hire U.S. citizens or lawful permanent residents due to ITAR regulations. SpaceX posted multiple job advertisements stating similar citizenship requirements, even when not mandatory.
Applicants had to specify their citizenship or immigration status. SpaceX kept track of all of the numerous job applications with a database that allowed its HR team to see applicants' self-identified citizenship or immigration status. The database used various "rejection codes," including "not authorized to work/ITAR ineligible."
The rejection codes indicated applicants were ineligible due to ITAR, even if they were otherwise qualified. As a result, SpaceX rejected applicants who identified as asylees or refugees, at least some of whom were qualified; according to the DOJ, these rejected were based on their citizenship or immigration status.
Sometimes, the rejections were explicitly due to citizenship reasons; at others, the reason could be inferred because it was coded with a vague "neutral" reason. For example, an asylum applicant was rejected in 2020 using the code "doesn't meet preferred qualification," and a hiring manager listed the reason as, "not U.S. citizen or green card." But in many other cases, the hiring team would use other rejection codes such as "does not meet basic qualifications" or "does not meet preferred qualifications" to reject self-identified asylees and refugees. But, the DOJ claimed, these rejections were also based on citizenship or immigration status.
Data revealed the company primarily hired U.S. citizens and lawful permanent residents, with only one asylee hired after an investigation notification. Refugees were not hired during the specified period.
The complaint asked the EOIR to do a bunch of things to remedy the situation: order SpaceX to stop the illegal practices; impose civil penalties on the company for each individual discriminated against; order the company to provide fair consideration to each applicant who identified as an asylee or a refugee but was improperly rejected and to hire qualified applicants who were discriminated against; make the company pay back pay, including interest, to those who suffered lost wages due to the discrimination.
SpaceX Fires Back
On September 15, SpaceX filed a countersuit against the federal government in a federal district court in Texas. The company specifically named as defendants Attorney General Merrick Garland, the Chief Administrative Hearing Officer of the EOIR, and the Administrative Law Judge (ALJ) involved in the DOJ's suit.
SpaceX contends that the DOJ's legal proceedings are unconstitutional for several reasons. One — perhaps unexpected — reason is related to the involvement of the ALJ. The ALJ was appointed by the Attorney General, whereas SpaceX claims that under the Constitution, ALJs must be appointed by the President. Another issue claimed that the ALJ is unconstitutionally protected by two layers of for-cause removal, insulating her from Presidential authority. SpaceX also claimed that the previous case should have been decided in federal court rather than in an administrative proceeding and that the company was denied its Seventh Amendment right to a jury trial.
What's next? Most likely, the court will block the DOJ's administrative case from moving forward pending the outcome of SpaceX's lawsuit. Looks like Musk can look forward to even more time in court.
- Elon Musk Wins Again, Found Not Liable for Tesla Tweets (FindLaw's Courtside)
- Employment Discrimination Resources (FindLaw's Learn About the Law)
- Twitter v. Musk: The Battle Begins (FindLaw's Courtside)
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.