Jeff On Call: How to Handle a Transgender Candidate

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Q: I have a candidate who interviewed with my client and is going to receive an offer. She just told me that she is transgender and wants me to disclose that to the employer.

I told her that I never disclose pregnancies, disabilities, religion, sexual preference, etc. and that I would not disclose this. She has decided that she wants to tell this herself but she asked me how to approach the hiring manager (CEO) and wants me to send the employment verification to him that is in her male name first.

I haven’t done anything yet. I do not want to put myself in a liability situation and I do not want to put my client in one either if he chooses for any reason not to hire her. We haven’t done reference checks or anything yet. This is a small company of 27 employees that would be devastated by a law suit. Also, the hiring manager trusts me, and I feel bad not discussing this with him. Any advice?

The initial request for you to disclose transgender status of a candidate raises a unique legal question.

Referring (and hiring) based on sexual orientation or preference is clearly prohibited in federal and state equal employment opportunity laws. However, the Latin phrase volenti non fit injuria permeates our entire system of jurisprudence. It means “he (or she – or both) who consents cannot be injured.” (I tell you these things because tossing around buzzwords like that to your lawyer lowers your legal fees.)

In this case, your candidate is a member of a “protected class.” Therefore, his consent is vitiated (nullified). It would be like having a child consent to work for less than minimum wage. Since the child is the victim to be protected, he can’t consent legally to an illegal act against him.

Your candidate may insist — even threaten. You must stay back — way back. Your duty (if any) to your contingency-fee “client” must yield to your clear duty to obey the law.

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Next month when it’s released, your candidate might want to pick up a copy of my new book, entitled Instant Interviews: 101 Ways to Get the Best Job of Your Life (Wiley). “Do” (Chapter) 81 is entitled “Disabling a Disability Instantly.” I use a take-no-prisoners approach that will work well for him. (Of course, transgender status is not a disability, but the disclosure technique is the same.)

Thanks for asking, and “consenting” to us sharing the reply to this great question.

Best of luck!
Jeff

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To participate in future Q&As, email jeff@placementlaw.com. Keep in mind you should always consult with your own attorney. Nothing contained herein should be construed as legal advice. It is for your information only.

More than thirty-five years ago, Jeffrey G. Allen, J.D., C.P.C. turned a decade of recruiting and human resources management into the legal specialty of placement law. Since 1975, Jeff has collected more placement fees, litigated more trade secrets cases, and assisted more placement practitioners than anyone else. From individuals to multinational corporations in every phase of staffing, his name is synonymous with competent legal representation. Jeff holds four certifications in placement and is the author of 24 popular books in the career field, including bestsellers How to Turn an Interview into a Job, The Complete Q&A Job Interview Book and the revolutionary Instant Interviews. As the world?s leading placement lawyer, Jeff?s experience includes: Thirty-five years of law practice specializing in representation of staffing businesses and practitioners; Author of ?The Allen Law?--the only placement information trade secrets law in the United States; Expert witness on employment and placement matters; Recruiter and staffing service office manager; Human resources manager for major employers; Certified Personnel Consultant, Certified Placement Counselor, Certified Employment Specialist and Certified Search Specialist designations; Cofounder of the national Certified Search Specialist program; Special Advisor to the American Employment Association; General Counsel to the California Association of Personnel Consultants (honorary lifetime membership conferred); Founder and Director of the National Placement Law Center; Recipient of the Staffing Industry Lifetime Achievement Award; Advisor to national, regional and state trade associations on legal, ethics and legislative matters; Author of The Placement Strategy Handbook, Placement Management, The National Placement Law Center Fee Collection Guide and The Best of Jeff Allen, published by Search Research Institute exclusively for the staffing industry; and Producer of the EMPLAW Audio Series on employment law matters. Email him at jeff@placementlaw.com.

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2 Comments on “Jeff On Call: How to Handle a Transgender Candidate

  1. Thanks for this insight. Another question pops up right then:

    Should recruiters rely on linkedin profiles and recommendations and should they watch candidates’ videos?

    1. Pictures and videos disclose gender, age, race very often. Does this open room for lawsuits on discrimination?

    2. Are candidates legally bound to tell the truth in their profiles or videos? Videos can be a piece of art. Profiles can be an statement of a private person (not a company!).

    How do you deal with that?

    Andreas

  2. The individual candidate may, or may not, be a member of a protected class. Some states and localities do have express statutory protection for “gender identity and expression.” Others have state laws barring discrimination on the basis of “sex” or “disability” that have been interpreted by courts as protecting transgender employees.

    Federal caselaw is mixed. However, the recent case of Schroer v. Billington (D.C. District Court, 2008) – see

    http://www.aclu.org/pdfs/lgbt/schroer_decision.pdf

    may well be controlling, and that held in favor of a transgender applicant for a job with the Library of Congress. The Department of Justice decided it would not appeal the award of nearly $500,000.00.

    How do *I* approach the situation when I am looking for a job? I really would not want to take a job with an employer who has a problem with my status, regardless of my “legal rights” – so I telegraph things on my resume in a section on “Community Service” that highlights a number of the positive community service work I do for the transgender community as well as the wider community at large.

    By doing this, I will never know whether I am being passed over because of discomfort over my being transgender.

    On the other hand, the advice you gave the consultant to “steer clear” of the issue was probably a good one – let the prospective employee do a self-disclosure on her own. it is not the consultant’s job to be screening for this, and could certainly open the door to potential liability.

    This was certainly spot-on advice!

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