New York Lawyer for Transgender Discrimination in the Hiring Process

New York City Attorneys Aggressively Advocating for Job Applicants

Transgender workers face significant obstacles to getting a job. Often, it is challenging to prove discrimination in the hiring process, and transgender job applicants need to be aware of changes in behavior toward them between the time that they are contacted for an interview due to a resume and the in-person visit. In some cases, potential employers comment that an applicant's voice or appearance does not match the resume or identification provided. Prospective employers are not permitted to ask you about personal details related to a transition or about your anatomy. If you are subject to transgender discrimination in the hiring process, you should retain legal counsel. At Phillips & Associates, our New York City transgender discrimination lawyers may be able to assist you.

Transgender Discrimination in the Hiring Process

Discrimination in the hiring process may occur at several different stages. It may occur during a preliminary telephone interview if an employer's representative perceives a discrepancy between a resume and the voice of the job applicant. It may occur during an in-person interview if an employer believes that there are inconsistencies between gender presentation and a background check. Sometimes this is couched as a failure to disclose accurate information by an employer trying to avoid the appearance of discrimination. Discrimination may even occur if a past employer is called for a reference.

When the organization Make the Road New York investigated transgender discrimination in the retail sector, it found a 42% net rate of discrimination against transgender workers. In a 2009 survey, it learned that 59% of the transgender workers surveyed suffered from job discrimination and that 49% had not been offered a job while living openly as a transgender person.

Laws Protecting Your Rights as a Job Applicant

Both Title VII and the New York State Human Rights Law also provide protection against transgender discrimination in the hiring process, but the New York City Human Rights Law provides the greatest degree of protection. Title VII does not provide explicit protection for transgender workers, as state and local laws do. The New York City Human Rights Law prohibits employers from considering transgender identity during hiring or when making a job offer, and it also prohibits subtler forms of discrimination, such as those related to requests for accommodations of disabilities related to gender or transition and time off from work.

This city law may be violated when, for example, an employer permits a reasonable accommodation for a cisgender woman who plans to get breast surgery shortly after starting a job, but the employer denies this accommodation to a transgender job applicant who will be undergoing the same medically necessary surgery. It may also be violated if the determination of which benefits will be offered to a job applicant hinges on their gender.

Penalties and Damages for Violations

The New York City Commission on Human Rights may penalize an employer up to $125,000 for violations and up to $250,000 for violations arising from the employer's willful, wanton, or malicious conduct during the hiring process. The penalty may be based on the seriousness of the violation at issue, whether there are prior violations, the employer's size, the employer's actual or constructive knowledge of the New York City Human Rights Law, whether there is an adequate anti-discrimination policy in place with regard to hiring and employment, and other factors.

For many employees, it makes sense to bring a private civil lawsuit under the New York City Human Rights Law to seek damages such as back and front pay, compensatory damages, and punitive damages, rather than an administrative claim.

It may be challenging for a transgender job applicant to figure out for sure whether they have been subject to discrimination in the hiring process. It is illegal for an employer to refuse to hire someone because of their actual or perceived gender, including their transgender status. However, many employers are too savvy these days to come right out and say that they are discriminating. Accordingly, it is important to keep contemporaneous records of what you believe showed a bias against you.