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He said/She said: The legal risks of interviewing transgender applicants

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in Discrimination and Harassment,Hiring,HR Management,Human Resources

Federal workplace anti-discrimination laws don’t specifically extend protection to transgender people (those who present themselves as members of the opposite sex). However, 13 states plus several cities and counties have passed such laws (see box below).

But even if your state or city doesn’t have such a law, you still could face liability for discriminating against transgender people.

That’s why it’s wise to handle interviews with transgender people just as you would with anyone—focused on job-related information only.

Recent case: Raul Lopez Jr. is a biological male who presents himself as Izza Lopez, a female. Lopez applied for a position at a Houston medical clinic, submitting his application using both his male and female names.

The company offered Lopez the job. But the HR director demanded to know what Lopez’s biological sex was and later rescinded the offer, saying Lopez “misrepresented” himself in the interview, which violated company policy.

Lopez sued for sex discrimination under Title VII. But he didn’t sue because he was transgender (remember, that’s not protected under federal law). Rather, he sued because he was allegedly discriminated against because he was perceived as not conforming to traditional gender stereotypes of how a male should look.

The court sent the case to trial, saying that sex discrimination occurs “when an employer discriminates against any employee, transsexual or not, because he or she has failed to act or appear sufficiently masculine or feminine enough for an employer.” (Lopez v. River Oaks Imaging & Diagnostic Group, Inc., No. H-06-3999, SD TX)

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