Dr. Jillian T. Weiss

Trans Job Applications: To Name or Not To Name?

Filed By Dr. Jillian T. Weiss | October 04, 2011 9:45 AM | comments

Filed in: Living, Transgender & Intersex
Tags: previous name, prior name, transgender name change, transsexual

As part of a series of Q&A's on my Transworkplace Social Network, I'm posting a series of questions that I often get about transgender issues in the workplace, and Bil suggested I crosspost this one here.

Being trans often poses very difficult dilemmas about how to best go about seeking employment, particularly when it comes to the question of being out or not being out. But often, the issue of whether prior names should be disclosed makes it impossible to avoid being out, or being outed.

Q: "I am applying for jobs, and I am unsure whether it is a good idea to include my previous name."

Answer: The answer to this question depends a great deal on the type of job you are applying for, how "out" you are, and whether your previous name is requested in an employment application.

Firstly, if previous names are requested in an employment application, it is usually for the purposes of a background check. That means the employer is planning, at some point, on the possibility of conducting a background check through a security firm. Failure to reveal the information could be seen as a misrepresentation or, more accurately, a material omission. Where failure to reveal a previous name is not an attempt to conceal prior criminal convictions, I do not believe that it is wrongful, though lawyers may disagree on this question. Particularly where the job involves a security classification, such an omission would be viewed very seriously.

At the same time, revealing a previous name may mean revealing trans status, and in some job sectors that may eliminate any chance of receiving the job. One has to balance the likelihood of not being hired because of revealing a previous name against the likelihood of not being hired (or later fired) because of discovery of the failure to reveal it.

Many jobs do not have a specific employment application, particularly in the professional sector, and there is no request to reveal prior names. In that case, since there is no specific request, there is less of an obligation to reveal a prior name. Nonetheless, a prior name may still appear on a background check. One of the likely pieces of information to reveal this is information about one's social security number, since a prior name may be linked in the government's database to the number. In the past, the government also had a practice of sending out "no-match" letters to employers, who are required to report employee names and social security numbers to the government. These no-match letters indicate if there is a discrepancy between the social security number and other information linked to the account, including gender. However, it was just announced in the past week that the U.S. government will no longer be sending no-match letters based on gender, so hopefully that is a thing of the past, as it often involuntarily outed trans employees.

Another item to consider is the fact that previous employers listed on your application or resume may be called to ask about your performance and dates of employment. If previous employers knew you by a different name, that may cause some confusion, and, possibly, a suspicion of lying on your resume, among potential employers. This is probably the most difficult hurdle to get over. One can try to forestall this problem in a number of ways. One is to contact previous employers and to explain the situation, noting that the new name will be used. This is a good possibility if the old employer appears likely to be fair-minded and they had a positive view of you as a former employee. Where that is not the case, another option is to tell the potential employer that you prefer not to have the previous employer contacted, either because you are still working there or because there was a personality conflict with a previous manager. The former will only work with the immediately previous employer, and not with older employers from years past because, obviously, you are no longer working there. The latter solution may raise negative implications about you, and that could also prevent you from getting the job. Another option is to delete the old employer from your application or resume, but that may leave an unexplainable and damaging gap in your employment history. While it is possible to fudge dates of employment, or to fabricate self-employment, dates of employment are easily verified by a potential employer and fabrication is a lie that may come back to haunt you.

Another possibility is the "two-step" process, where one initially submits an application or resume without the information and submits a letter separately to the HR department that indicates the fact of transition and requests that the information be kept confidential within the HR department as a matter of medical privacy. In larger organizations, with a strong HR professional function, that could provide some measure of protection.

While I believe that a trans person has a legal right to consider transition a medical matter subject to privacy laws, the problem is that if a potential employer finds an old name that outs you, and the employer wishes to discriminate on that basis, the likelihood is that the employer will simply fail to extend an offer and you will not know why. On the other hand, if one reveals trans status, and the potential employer indicates discomfort with that by words or deeds, that could create the possibility of a successful lawsuit. However, if what you want is a job, a lawsuit is scant comfort, and such suits take years and more often are unsuccessful than not unless there is evidence in writing of the discrimination. (Evidence in writing is not necessary for a suit to be successful, but it is easy for discriminators to deny having said something orally.)

Of course, if you are completely out, and/or dealing with a potential employer who is clearly trans-friendly, then the option of being completely forthright is much more appealing. I note that in obtaining my last position, as a college professor in a small public college in New Jersey, for which I applied eight years ago, I did not specifically reveal my old name or my trans status in my initial application. Information about my trans status was, however, easily available online. At my initial interview with the search committee, towards the end of the interview, I revealed my trans status and said I was doing so because I wanted to hear from them whether there had been incidents of homophobia or transphobia there, and whether they anticipated I would have any problems on the job from co-workers or students. Their answers gave me great confidence that I would not have problems there, that they were fair-minded in regard to my gender identity, and, fortunately, they were one hundred percent correct. While you might think that this job position was different from others, in that a college environment in the Northeast will always be more liberal than most other employers, I will tell you from hearing many stories from others over the past several years that college employers, even in the Northeast, are as subject to discrimination as any other. In addition, employers that one might assume to be discriminatory because of the job sector or the cultural environment sometimes are, in fact, fair-minded, as I have had occasion to hear as well through the stories of others. One has to judge the situation based on many factors, but I wish to note that being open and honest can result in employment of long-standing.

None of these options eliminate entirely the possibility of discrimination based on trans status. The best solution depends greatly on your specific circumstances.

Feel free to respond with a different answer, your experience, or another question. I note that my suggestions here do not constitute legal advice, and may not be best for any individual situation, which should be judged based on individual facts and circumstances.

crossposted from Transworkplace Social Network

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Don't forget the Selective service Question..

I had a couple of interesting experiences with the names issue. After a 3 yr medical retirement (during which I completed my transition) I was cleared to work. I immediately went to the local Home Depot here in FL (I had previously been employed by them in Denver) Three days after I put in my application, I awoke in the middle of the night from anxiety. I realized that when they checked my in house record, it was under that other name.
That day I called and spoke to the manager and said,"When you check my record in the company, you will find a different first name... I'm not him any more. I am me, Joani" He responded that he already knew and said,"You are the type of person that I want in my store." I was hired.
Some years later, I went to apply for a position in a State of Florida psychiatric hospital for the criminally insane (all men) and right at the top of a very long application, under Education, was the question, "Name under which you attended this institution?". I thought "Oh sh*t" . So I listed my graduate work then, as it was a looong application, I went back to the woman HR officer and asked," Is this going to be a deal breaker?"
When she finally realized what I was talking about, her response was a smile and,"I don't think that that is any of our business." I was hired, I enjoyed the job until I retired, 4 yrs. I have been very fortunate, and I know it.

Jaime Dunaway Jaime Dunaway | October 5, 2011 11:49 AM

My employer already knew I was trans from prior contact since its a local place and a small town. Since I knew they had to run a background check, I put all my legally correct information on the application. They've been quite good about treating me as just one of the ladies that work there with very few pronoun mistakes.

Honestly, I wouldn't want to work somewhere that I'd have to worry about repercussions if they found out about my past, seems like it'd make for a stressful working environment.

If you search the Internet using the phrases "illegal questions" "legally changed" together you'll see several resources that say that employers should not ask for previous names except under certain circumstances and asked in a certain way (such as whether or not you have records they need to check under another name). (One of the sites you get may be a link to a discussion on this topic at susans.org, which in turn mentions a link to this blog.) For the most part the sites you'll see don't discuss the issue as it specifically applies to the trans community, but rather how it might lead to discrimination in other ways (e.g. an immigrant who adopts a more American-sounding name to cut back on prejudice).