Is there a cross-dress code?


Should we tell our client about transvestite candidate? We recently received a very strong CV from a candidate and invited them in for a preliminary interview. When they came in to see us, it was immediately clear that the applicant was a man dressed in women�s clothes.

As an agency we make every effort not to discriminate and we will be shortlisting the candidate. We don�t plan to tell the client beforehand as we want the candidate to be judged on his skills alone. What�s the legal position on this?

In general, there is no legal obligation on job applicants to voluntarily disclose matters such as their gender.

Employers are entitled to ask applicants a broad range of questions to help them determine who is the best candidate for the job. However, care needs to be taken as some questions could breach an applicant�s legal rights if he or she falls within the scope of the anti-discrimination legislation, leaving an employer open to a claim for unlimited compensation.

The legislation currently prohibits discrimination on the grounds of sex, marital status, gender reassignment (but not transvesticism in itself), race, disability, religion or belief, and sexual orientation. It protects individuals at the job application stage by making it unlawful for an employer to discriminate in the arrangements it makes for the purpose of determining who should be offered employment.

Your firm, as an employment agency, is also prohibited from discriminating against individuals in relation to the provision of their services and if you�re acting as an agent for the employer, you and the employer will be liable for any discriminatory questions.

In contrast, job applicants who do not fall within the scope of the legislation � as in this case � have far more limited rights as employment legislation does not specifically protect them. The particular problem for this employer is that they cannot know at the interview stage which, if any, of the anti-discrimination categories this job applicant falls into. So, for the sake of caution, you should assume that the legislation does apply to this candidate.

If the applicant is protected by the legislation, asking them about their gender could constitute discrimination or harassment if it is asked in an aggressive or judgmental way, so as to violate the candidate�s dignity or cause intimidation.

It is not discriminatory in itself to ask a candidate about their gender, as it is unlikely to constitute �less favourable treatment� or �detriment�, which are the necessary elements of direct and indirect discrimination respectively.

The real problem faced by employers seeking to elicit information about groups who are protected by the anti-discrimination legislation is that the question could lead to inferences of discrimination. Employers should only ask questions relevant to the skills required for the job. So if the fact that a person is a transvestite has no relevance to whether they are able to do the job in question, the question about gender should not be asked.

Questions about irrelevant factors may well lead the job applicant to believe that he or she has been discriminated against.

It�s also important for you to note that in such circumstances inferences of discrimination may be drawn whether or not the candidate is accepted for the job.

Finally, on a practical note, it�s important to take detailed notes at the interview to provide evidence that no discriminatory factors were taken into account in making any decision.

CONTRIBUTOR: Tamsin Rickard, solicitor, Ashurst


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