Employers and transgender job applicants both have rights and responsibilities when it comes to background checks. With regard to transgender employee rights, many hiring managers still have questions about performing non-discriminatory background checks.
For many companies, inclusive hiring practices that respect transgender rights can seem like uncharted waters. Fortunately, the EEOC has issued legal guidance on transgender background checks. Here is some more information for companies striving to perform non-discriminatory background checks and details on how The Orsus Group can help with this complicated issue.
Transgender Applicants and "Deadnames"
The name that a transgender person is given at birth is known as their "deadname." These applicants frequently change to new names that reflect their gender identity when they transition. Since using a birth name is often triggering for these candidates, they may be hesitant to put their birth names on job application forms.
The employer may be unable to conduct a full background check if a candidate has changed their name and gender identity on their driver's license or other legal documents. However, if a transgender person does not include their birth name under "Aliases or AKAs" on an application form, it can legally be used as grounds to reject the application.
Navigating Transgender Background Checks
Many transgender people worry about being "outed" during the application process. This is a sensitive issue, but inclusive hiring practices within a company can help alleviate these fears. If a candidate is currently undergoing a medical transition or has medically transitioned in the past, this is private, protected information under employment laws.
A company policy can be specifically designed to isolate any medical information uncovered during the application process. It is extremely important that a hiring entity establishes a company policy on background checks to ensure that this is done in compliance with the law. Private medical information can be kept within the HR department without alerting hiring managers that a candidate has transitioned.
Another thing employers should keep in mind is that there are different types of background checks needed for different kinds of jobs. When most people hear "background check," they think about criminal history checks. The truth is that there are numerous types of background checks, and they cover much more than a candidate's criminal record.
At Orsus Group, we provide many different kinds of background checks:
- Criminal records & database searches
- Drug screening
- Employment verification
- Professional reference checks
- Professional license verification
- Social Security number verification
- And much more
Employers have the right to ask transgender candidates for other names they have lived under, but that information must be treated to protect transgender employee rights. Laws can vary from state to state. They determine if transgender persons are able to change their names on legal documents. The Orsus Group has experience navigating this complex issue for our clients when conducting background checks.
EEOC Guidance on Transgender Background Checks
The U.S. Equal Employment Opportunity Commission has issued additional guidance for employers regarding transgender background checks and employee rights. Transgender candidates are a sex-based protected class under federal civil rights laws. Therefore, they are protected from discriminatory hiring practices.
The EEOC has ruled that employers can exclude job applicants based on their criminal history. However, the employer must be able to prove that the disqualification is based on job requirements and is consistent with the company's business activities. This means an employer can have applicants submit to a criminal background check, but the background check cannot be used in a discriminatory way.
It's also important to note that the EEOC prohibits the use of criminal background checks if they are used to disproportionately exclude applicants of a particular protected class.
Need help ensuring your background checks are inclusive and respectful? Reach out to Orsus Group for comprehensive, legal, and inclusive background check services.