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Consider the following hypothetical scenario (the question applies to the UK but could be interesting more broadly). Someone applies for a job, part of which requires travel to the US. However the applicant is Iranian and so is unlikely to be able to get a travel visa easily. They therefore cannot perform one aspect of the job they would be hired for. Is it OK/legal to turn the person down for the job because of this?

In law this looks like nationality discrimination, which is clearly illegal. On the other hand, it is a bona-fide requirement for the job that the person can travel.

closed as off-topic by Fattie, sf02, Magisch, gnat, Mister Positive Feb 14 at 12:48

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    I'm voting to close this question as off-topic because ask on Law. – Fattie Feb 13 at 12:35
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    @Fattie In that case you can also flag for a moderator's attention and ask them to migrate. – rath Feb 13 at 14:02
  • What a great question. It's a strange "discrimination by proxy" sort of problem. Fascinating. I see it in the same context as needing a passport for work. The question would then be "can you get a passport?". If not, then you can't do the job. I would challenge the difficulty of an Iranian from the UK getting into the US... I wonder how difficult that is in reality. Regardless, the sad unethical truth here is that this candidate is likely being discriminated by proxy. Which is a shame. – ShinEmperor Feb 13 at 16:43
  • I'm voting to close this question as off-topic because the question strictly asks about legalities and that is not on topic here. – Magisch Feb 13 at 17:11
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    @Magisch How about flagging for a moderator to migrate it? – Anush Feb 13 at 17:19
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Things to consider, in order of priority:

You want a lawyer advice, in writing

Anything you will read here has 0 business value and 0 value in court. Written legal advice will at least show due diligence in following relevant work and anti-discrimination laws.

You must not discriminate on nationality

It is protected quality in practically all countries of European Union, and it is protected in united Kingdom

You are allowed to "discriminate" against not being able to perform the job

You need to be prepared to prove such duties are really relevant to the role you are hiring for. In this case, business trips to USA are legitimate, no company would pay for such trips if they weren't. Not for new hire, anyway.

Be careful to have "ability to travel to the USA in foreseeable future" as a requirement. No mention of Iranians whatsoever.

Be careful to whom travel ban applies.

I am not a lawyer, but as far as I understand having USA "Visa" in passport is totally irrelevant to the ban* - if it applies, even person with valid business visa will not enter. On the other hand, it does not apply to people who hold double USA / Iran citizenship. And it is complicated for people with other combinations of citizenships.

You do want to consult migration lawyer about that. Or, you can schedule interview in USA offices. It will prove that such person can enter USA at least once, and thus, that travel ban does not apply to her. More than once? USA never guarantees that anyway.

And with all that in mind,

You want a lawyer advice

Yes, I know I repeated myself here, but that's important, because this situation is complicated on so many levels one could make an academic degree on it. Even courts in USA couldn't agree for a long time in what parts Trump's ban is legal, and what measures to implement it are legal, and that's barely beginning of your problem.


From moral perspective, there is nothing wrong with refusing employment if candidate is plainly unable to do the job. Especially if reasons are beyond control and candidate cannot "improve" on them, and you couldn't accommodate or her inability in any reasonable way.


* OK, there was exception for Iran people with student visa, but not business visa. No exception for Syria people at all. Yemen visa holders could enter with specific ban for business and tourist visa holders... Maybe it have changed already. Have I told you to consult a lawyer?

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I believe you answered your own question.

Someone applies for a job, part of which requires travel to the US.

and

They therefore cannot perform one aspect of the job they would be hired for.

That's reason enough for not hiring. There's no discrimination here. Getting things done in time is a requirement, and being a particular national or not, if the requirement is not fulfilled, there's no point in hiring.


To elaborate: If this is categorized as discrimination, then consider this: Not allowing some XYZ-national candidate because they do not meet the required experience for a role is also discrimination?

  • Comments are not for extended discussion; this conversation has been moved to chat. – Snow Feb 14 at 6:53
  • I downvoted you, despite liking your answer. Your answer is brief and solid, but assumes that the OP is correct in asserting that the potential hire will be unable to get a visum. Molot's answer justifiably questions this assumption, thereby better protecting the OP from accusations of discrimination. – SambalMinion Feb 14 at 9:01
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IANAL:

This should be posted under the law exchange to be honest.

It is against the law to discriminate against anyone because of:

  • age
  • gender reassignment
  • being married or in a civil partnership
  • being pregnant or on maternity leave
  • disability
  • race including colour, nationality, ethnic or national origin
  • religion or belief
  • sex
  • sexual orientation

You have to see if it is impossible or improvable that the person will be allowed to enter the USA.

Again, whether or not you can legally do so, will be something you will need to check with legal.

Whether it makes sense, I agree with you that it is sensible and in my opinion ethical if IMPOSSIBLE, if improvable and the person is the best candidate, then you can make a conditional offer.

  • @Anush you are correct, I didn't read my own answer sorry...I've edited my answer but sustain my opinion. – fireshark519 Feb 13 at 12:03
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    Please don't use code syntax for non-code context. In some screen readers it makes such text to be read letter by letter, and makes it really annoying for people with sight disabilities. – Mołot Feb 13 at 12:03
  • @Mołot sorry that was auto-formatted that way. I have changed it now :) – fireshark519 Feb 13 at 12:07
  • Thanks :) I know most of the time there is no malicious intent behind such formatting, just an oversight. Luckily, oversight relatively easy to fix. – Mołot Feb 13 at 12:09
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Think about it:
you're simply following the law as an employer if you don't hire someone who is not allowed to work in / travel to your area of business (in your case the US and the UK)

It is very common to see job posts stating "only if allowed to work in country X" or "if no visa / sponsorship required to work in country X".

Many countries actually require employers to preferrentially treat applicants from the employers country.

Many also require an evaluation of their labour market and hire own citizens / residents before considering foreigners.

So while it technically is discrimination it is mandated by law in places thus exempt from / not applicable to antidiscrimination laws.

Your case is in the same category by my understanding.

If travel to countries is required that most likely or definitively won't allow an applicant to travel / work in, they won't be able to perform that job, thus hiring them would be a moot point for that specific work posting.

However, I do suggest to consult a lawyer.

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