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New Equal Employment Rulings Help Transgender, Ex-Offender Workers Get & Keep Jobs

This week, the EEOC ruled that transgender workers are protected under the Civil Rights Act and laid out guidelines restricting criminal background checks.

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Pizer says the EEOC’s logic would also apply to some, but not all, cases of discrimination against non-heterosexual workers: it would apply to a non-transgender lesbian woman, for example, who was treated differently because of a perceived failure to conform to “feminine” norms.

But it would not protect the same woman if she was being treated differently specifically for having, or wanting, same-sex relationships. Pizer acknowledges that’s an “odd line,” and one that could be exploited by employers. A minority of states have their own laws banning workplace discrimination based on sexual orientation.

The Employment Non-Discrimination Act, a bill to ban discrimination based on sexual orientation or gender identity, has been repeatedly introduced in Congress, though it's drawn less attention than fights over marriage equality. In a November press conference following the announcement of his retirement, Congressman and ENDA sponsor Barney Frank  named resistance to transgender protections as one of the reasons the bill has not yet passed.

Pizer says the EEOC’s ruling, which leaves transgender workers with stronger federal protections than other LGBT workers, doesn’t lessen the urgency of passing a broad ENDA, but has the potential to dull some of the opposition. 

“What we’ve seen in some states,” says Pizer, “is that when courts and administrative bodies recognize that a kind of discrimination is covered by existing law, then sometimes legislators find it that much more straightforward, if you will, to codify that understanding into a statute.”

Ex-offender protections

In a Wednesday vote, the EEOC approved a revised set of guidelines for employers regarding the use of criminal background checks in hiring. Advocates hailed the move in a Thursday conference call with reporters.

National Employment Law Project Executive Director Christine Owens said it “was really well past time” for new guidelines, given that the “terrain…had shifted so dramatically” since 1987, when the EEOC first formally recognized the “disparate impact” of such restrictions on African-Americans and Latinos.

In the 25 years since, notes Owens, the pre-employment background check industry has exploded, and the use of such checks has spread from a bare majority of the economy in 1996 to over 90 percent today. NELP has estimated that up to 65 million U.S. adults face potential job restrictions due to past offenses, including 1 in 17 white men, 1 in 7 hispanic men, and 1 in 3 black men.

Compared to its ruling recognizing anti-transgender discrimination as a form of sex discrimination, EEOC law on pre-employment background checks remains less clear: The EEOC warns that such practices can have a potentially illegal—discriminatory effect, but doesn’t consider them inherently to be a form of racial discrimination under Title VII.

Sharon Dietrich, a managing attorney for Community Legal Services of Philadelphia, says the EEOC’s move Wednesday “is not groundbreaking, but it is extremely important.” Dietrich highlighted the change in three areas. First, the EEOC is providing illustrative examples for employers of practices now likely to run afoul of the law, including firing already-hired employees purely on the basis of background checks, or automatically disqualifying all employees with criminal records in an online application. Second, it offers guidelines for how to stay within the law. Third, it advises employers to inform potential employees when ex-offender status is being weighed against them, and provides guidelines for consideration of extenuating circumstances.

Dietrich notes that private-sector employers aren’t the only ones that have been found to use background checks in a manner inconsistent with the Civil Rights Act. She says the EEOC’s new guidance means that “legislators at the state and local level cannot enact over-broad state and local laws that restrict the employment of former offenders.”