Transgender Discrimination – How will your decision to change your status impact your job or future employment?

Earlier this year, Governor Dannel Malloy signed into law protections for transgender individuals providing protection from discrimination in the workplace and in housing. “An Act Concerning Discrimination” defines “gender identity or expression” as follows:

“[A] person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth, which gender-related identity can be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose.”
The bill was hailed by many advocates and hopes ran high that the addition of gender identity or expression to the existing protected classes under Connecticut law would correct years of discrimination against the transgender community.

Even with these new protections, the practical impact of a transgender transition on your job or, more directly, finding a new job can be difficult to gauge. If you are transitioning while employed, the most significant question is when to advise your employer of your intentions. Clearly, this is a case by case situation and the nature of your job, your employer and your position will impact when you decide to inform your employer.

If you are in the process of or considering transitioning while you are unemployed or looking for new employment, there are other considerations. You are under no obligation to discuss your gender identity with a potential employer. However, there are practical considerations you should consider. The most prominent is the reaction of the employer or fellow employees if you transition after you are hired. Lawyers will often look at a situation in terms of the legal implications of whether that reaction amounts to discrimination. If it does, then we will tell you that you have viable claim for discrimination. It is also conceivable that an employer could claim that you as a prospective had a duty to disclose your upcoming surgery. Essentially, the claim would assert that the failure to disclose was a fraud upon the employer. We question the legitimacy of such a claim.

However, as a new employee, you should not start your job with an ultimate goal of determining whether the reaction is actionable or not. Your goal should be to find a job in which you are comfortable and where, hopefully, you will not be subjected to discrimination. Again, each case will present a different set of circumstances, but there are certain questions you should consider in determining whether or when to advise a potential employer of your intention to transition. Those questions include:

  • does the employer maintain an anti-discrimination hiring policy?
  • has the employer hired or employed transgender employees?
  • are your outward appearance and demeanor important factors in your hiring and the position, such as in a retail or sales position?
  • what is your sense of the reaction of the employer?
  • is the position one that you will want even if you believe you will be subjected to direct or indirect harassment after transitioning?

These factors and others must be considered in determining when to advise a potential employer of your intentions. It may be that you are most comfortable informing the employer at the time of your first interview. Others may be more comfortable making the disclosure after an offer of employment has been made. Still others may not be comfortable making the disclosure at all and will prefer to wait until after he or she has been hired. That decision, whatever it may be, is not likely to ever be incorrect in the sense that under most circumstances you are under no obligation to disclose your gender identity.

If you are in the process of or considering transitioning and you want to discuss the impact on your job or job search, please be certain to contact Sullivan Heiser, LLC for assistance. Please make note of our telephone number and contact us to schedule a no-fee consultation.

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