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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Wednesday, May 24, 2006

Issue: Transgender Job Candidates

How should employers and recruiters who are operating under a law or policy prohibiting discrimination based on "gender identity" respond to transgender job candidates? According to the PC version, as noted in another post, gender identity discrimination includes discrimination based on a person's gender identity, self-image, etc. whether or not different from "birth sex." In other words, the issue is my view of myself as female, male, or other. This self-determinative view is to be honored, despite the fact that my birth certificate says "male" or "female." This makes discrimination based on present gender identity illegal, regardless of anatomical sex now or in the past.

Laws and policies, however, while they can dictate behavior, cannot dictate thoughts and prejudices. In our PC culture, all are aware that expressions of prejudice against any group are dangerous. The prejudice does not disappear, but mutates into a socially and legally acceptable form. This generally involves shifting the blame from employer prejudice to candidate ineptitude.

In an example of this, Forbes.com published an article yesterday (linked above): "Most Common Resume Lies." It suggests that transgender job candidates must advise potential employers of their gender identity, and that failure to do so is, if not exactly a lie, a "risky surprise."

"And in one case, a pre-op transsexual woman who called herself Charlene walked into the office of Mary Lou Nash, a Kansas City-based headhunter, who was surprised to meet a 6-foot-4 man whose given name was Charles. While not exactly a lie, surprising a potential employer with a detail like that might be risky."

The article implies that Charlene risked the success of her job search because of her failure to advise potential employers of her gender identity. It also suggests that the adjective "pre-op" is important to the story; but, in fact, the gender identity of pre-op transsexuals is no less protected than those of post-operative transsexuals. However, I admit that the reasoning employed here is tempting, even to those who are liberal in this regard. It is indubitably true that most employers and recruiters would be "surprised" when meeting a transgender job candidate. However, the suggestion that apprising an employer in advance will be less "risky" to the candidate's job status is not sound advice. If the employer is not prejudiced, the notice is unnecessary. If the employer is prejudiced, the notice will simply alert it to disregard the candidate, regardless of qualifications. By analogy, failure of a candidate to advise employers and recruiters of their race could also be called a "risky surprise," but few would now argue that the candidate is to blame for the employer's prejudice.

I am a member of a electronic bulletin board for recruiters. I have noticed that recruiters are extraordinarily honest about the prejudices of their clients, because their livelihoods depend upon their intimate knowledge of them. Here is a recent thread that exemplifies the ways in which prejudice against transgender job candidates manifests itself. These responses are a veritable "how-to" for employers and recruiters with a yen for a job discrimination lawsuit.
Question: "She had a candidate interview with her staffing company. . . However, she was reluctant to tell him about the position. The reason for this is that he interviewed in a really bad lady's wig, and was wearing heavy make up. . . . It is a fairly lower level office job, and the client does not require an interview. Whomever the agency thinks is best they say, send them over. . . [and] she feels that he has the skills necessary to be a good employee. But she isn't sure if it would be a good idea to send him to this position. What she wants to know is would it be proper for her to call the candidate and tell him that he would need to cut down on the make up, lose the wig, and please be sure to dress in a male business casual attire?"

Here are some of the responses from professional recruiters:

"Last I checked, crossdressing and those that participate in this activity are not (and should not be) a protected class."

"As recruiters we are supposed to present candidates with the skills necessary to meet or exceed the success profile for the job. Depending on the role, a man's procilivity for dressing as a female may or may not have an impact on their ability to be successful in the role."

"Representing a candidate who comes to an interview dressed like this would raise serious questions as to just how serious they were about getting a job vs making a social or fashion statement."

"[I]f the person appeared unprofessional (and a "bad" wig is certainly unprofessional; and more to the point - and let's be honest here - a man in a wig is flat-out bizarre to most people), then you can't be surprised when the candidate doesn't get the job...and when the client calls to complain about the quality of the candidates you are sending to them."

"I almost asked 'is this a true story,' but when I was a project manager for a client in a past job, a candidate showed up for an interview similarly dressed. Both situations cross the line of professionalism, in my opinion, and I would recommend to your friend that she not represent this candidate."

Note to HR and Diversity Managers: Make sure your recruiters aren't doing this in your name, and definitely make sure they're not gossiping about it on a public bulletin board.

The "Transgender At Work" website offers the following suggestions for best practices.

If I suspect a job candidate is transgender, can I ask?

Issue: It is unlawful to ask a job candidate their race or their gender. When interviewing a transgender candidate, you may suspect that he or she may be transgender. If the initial interview occurs over the telephone, you will only hear the candidate's voice and not see the person: this may lead you to suspect the person is of a different gender than their name would imply. (For example, a post-operative transgender woman may sound like a man over the telephone.)

BCP [Best Current Practice]: If the candidate volunteers this information, you may discuss it. Otherwise, you should refrain from discussing it or from forming opinions based on this assumption.

BCP: Company policy forbids discrimination based on gender identity or expression. Whether or not the candidate is a man, a woman, or is transgender, the candidate must be evaluated on qualifications and ability to do the job.

1 comment:

Rebecca said...

Dr. Weiss, I am continually amazed at the content on your site and your willingness to share it. This latest entry is really amazing. Thank you very much for putting it up, and for your willingness to be a positive voice helping companies (and the transgender community as a result) with regards to transgender workplace diversity.