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Our applicant turns out to be a transgender—can we revoke the job offer?

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in Discrimination and Harassment,Hiring,Human Resources

Q. Our company has just made a job offer to a highly qualified man to work in our company’s IT department. During the final stages of our interviewing process, the candidate told us that “she” is transgendered —that she would be transitioning from male to female. We believe employing a transgender employee could be very disruptive and cause a morale problem in the company. Can we rescind the offer based on the candidate’s transgender status?

A. Probably not. At least one recent federal court says some forms of transgender discrimination may violate Title VII’s sex discrimination provisions. That case involved an applicant at the Library of Congress who announced after starting work that he would be transitioning to a female status. The court found the library’s conduct constituted unlawful sex stereotyping. It also said the library’s refusal to hire the candidate after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination “because of ... sex.”

The Illinois Human Rights Act also precludes discrimination based on a candidate’s or employee’s transgender status, specifying that discrimination based on gender-related identity, whether or not traditionally associated with the person’s designated sex at birth, is unlawful.

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