DISCRIMINATION IN THE HIRING PROCESS
Discrimination during the hiring process is a very significant obstacle for transgender people. An applicant should be aware of any change in behavior or attitude toward him or her between the point of contact based on a resume or application, to a phone interview, and then to an in-person visit. Often, potential employers will note that the applicant's voice might not match his or her identification, and such a discovery could be the turning point in a potential employer's attitude toward the applicant.
A potential employer has no right to ask about any personal details related to an applicant's past, current, or future transition, nor can the potential employer ask about private details of his or her anatomy.
In California, FEHA prohibits any non-job-related inquiries that could directly or indirectly discriminate as to disability or sex, among other characteristics.1 If an employer attempts to ask such questions directly to an applicant, on a job application, or to a former employer, the employer’s conduct is illegal. However, this may not stop a potential employer from claiming that inconsistencies between gender presentation during an interview and gender markers revealed through an applicant’s background check should disqualify transgender individuals from employment for failure to disclose accurate information.2 Some employers may even use the background check process to discourage or discriminate against transgender individuals during the hiring process.3 Such discrimination has been ruled to violate Title VII when it causes an employer to withdraw a job offer after discovering the transgender status of an employee.4
California law requires employers who are conducting a background check (it doesn't matter whether they hire an outside agency to run the check or whether the employer does it themselves) to provide the applicant with written notice that the background check is being performed and, upon conclusion of the report, send the applicant a copy.5 It is important for an applicant to see what the employer is seeing about his or her background because often times the information may be inaccurate or misleading.
A potential employer may not access the medical records of an applicant. In California, medical records are confidential. There are only a few instances when a medical record can be released without an applicant's knowledge or authorization. If the potential job requirements have nothing to do with the applicant's anatomy or medical history (as is most often the case), the law prohibits the applicant from being required to disclose any such information.6 One exception may occur if an employee requests an accommodation at work related to a disability; if the need for accommodation is not “obvious,” an employer may request medical documentation of the disability.7
California employers cannot seek from any source the arrest record of a potential employee. They can and will, however, ask about past criminal convictions and a potential employee must answer these questions. Specifically, the California Labor Codes mandate that an employer (public or private) cannot:
• Ask an applicant to disclose information that they were referred to and/or participated in a pretrial or post trial diversion program; or
• Use any record of arrest or detention that did not result in conviction or any record regarding a referral to or participation in pretrial or post trial diversion programs, to determine any condition of employment, including hiring, promotion, and termination.8
There is an exception for jobs in the health care industry. If the job would require the applicant to have access to patients, the employer has a right to find out about an applicant’s sex-related arrests. Certain other employers, such as public utilities, law enforcement, security guard firms, and child care facilities have access to criminal records or “rap sheets.” Otherwise, this information is not public.9
In the San Francisco Bay Area, an applicant may be eligible to have his or her criminal record improved though an initiative called the Clean Slate Program. Governmental agencies and nonprofit organizations across California and throughout the country have begun offering similar criminal record improvement programs and initiatives. Individuals interested in improving their criminal record should research if such programs are offered through their local courts, county public defender’s office, or through nonprofit legal aid groups. People who have been arrested, convicted of a crime, or been found delinquent in Juvenile Court could be eligible to have their criminal record "cleaned" by a simple process. Some records, such as marijuana possession and juvenile offenses, can be totally destroyed. Other records can be changed from felony to misdemeanor status.10 Information about the San Francisco Clean Slate Program can be found here.
Through initiatives modeled after the Clean Slate Program, some cities, counties, hospitals, and nonprofit groups now also offer free or low cost tattoo removal services for individuals seeking employment who are facing the stigma associated with visible tattoo markings.
Discrimination in the hiring process could occur when a potential employer calls a past employer for a reference. The potential employers’ questions must be limited to performance-related issues. California law protects those who may have a soured relationship with a past employer. It is a misdemeanor for a former employer to misrepresent information about a former employee in order to prevent them from obtaining employment.11
Cal. Gov. Code, § 12940(d). ↩
Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653 (2008) (employer rescinded offer of employment after claiming background check revealed transgender applicant failed to disclose biological sex). ↩
Schroer v. Billington, 577 F.Supp.2d 293, 298-99 (2008). ↩
Id. at 308. ↩
Cal. Civ. Code, §§ 1785-1786. ↩
Cal. Civ. Code, § 56. ↩
2 CCR 7294.0(c) (2) ↩
Cal. Lab. Code, § 432.7. ↩
Cal. Lab. Code, § 432.7; Cal. Pen. Code, §§ 11105, 13300. ↩
See The National Lawyers Guild’s Know Your Rights Manual for the Transgender Community: Criminal Law. Last visited June 11, 2013. ↩
Cal. Lab. Code § 1050, (prohibits employers from intentionally interfering with former employees' attempts to find jobs by giving out false or misleading references). ↩