By Robert P. Tinnin, Jr.
Q: This morning I interviewed an applicant for a clerical position in our company. She appeared to be an attractive, personable young woman and was very engaging during the interview. However, I soon learned that “she” is really a “he,” at least anatomically. She told me she is preparing to undergo a sex-change operation but hasn’t yet done so, although she has adopted a female identity. She asked whether, if she were hired, she would be permitted to use the women’s restroom. Frankly, I was a bit taken aback and didn’t know how to respond. I told her I would have to check into the matter. If I hire her, would I have to let her use the women’s restroom? Couldn’t I avoid the issue altogether by simply not hiring her?
A: I would strongly suggest you not attempt to avoid the issue by refusing to hire her. Not hiring her would very likely expose your company to a charge of discrimination — and, potentially, a lawsuit with exposure to damages for emotional distress as well as attorneys’ fees and costs.