Career Q&A: When a background check goes awry

Q: My relative was arrested in 2006 and charged with theft. Turns out he was innocent, and all charges were dismissed with prejudice.

After he shelled out a few thousand dollars for a lawyer and attended court proceedings, the case was supposed to be expunged from all databases.

Now, he is looking for a new banking job. An independent recruiter told him the felony case is still on his record. The file says the felony was dismissed, but it's not supposed to be listed at all. How does he get this removed from all background check databases?

A: If your relative hasn't received a formal expungement notice from the court, says Sharon Snyder of Ober Kaler, he should call his lawyer, stat.

Unfortunately, it sounds as though his arrest has already been entered into at least one of the nationwide, privately maintained databases commonly used by background screeners hired to check candidates' employment, education, credit and civil/criminal histories. Under the Fair Credit Reporting Act, which covers employment as well as credit applications, consumer reporting agencies must verify public information about arrests and other legal actions. Evidently, whoever looked up your relative's record skipped that step.

For what it's worth, the Equal Employment Opportunity Commission says employers should not base a hiring decision on arrests or even convictions, especially if the incident took place long ago or is unrelated to the job in question. Unfortunately, for someone in banking, a theft accusation seems relevant, and even dismissed charges might still raise flags.

Under the FCRA, an employer must send you an "adverse action notice" if you are denied a job because of your record, so you have a chance to dispute the decision and have the record corrected. The Federal Trade Commission's Consumer Information site (consumer.ftc.gov) explains the law and outlines the process. But since your relative learned about his record through unofficial means, Robin Farmer, president of ScreenThem, suggests he have the recruiter connect him to the screening firm so he can dispute his record.

Which restroom for transgender worker?

Q: A longtime employee in our federal government office was "Bob" and now is "Barbara." When it was time for Barbara to start living as a woman, she spent a year using a designated unisex bathroom with only one toilet. After a year, she began using the women's multi-stall bathroom in preparation for her sex-change operation. She has also been taking estrogen and dressing as a female.

Another year has passed, and it does not appear she will be able to have the surgery. She doesn't have the funds, and it is not covered by insurance. How much time does she have to make the change before the agency can take the position that she is legally only a cross-dresser and have her use the gender-appropriate bathroom? We are at our wits' end.

A: Are you sitting down? (Figuratively, I mean.) Under federal policy, Barbara is using the "gender-appropriate bathroom."

"I know this question well," says Mara Keisling, executive director of the National Center for Transgender Equality (transequality.org). "We built a secret lab at the NCTE; we're trying to invent a transgender person who doesn't have to use the bathroom." It's a question that the California Legislature and the Colorado civil rights agency recently resolved in favor of transgender students. Meanwhile, a U.S. Senate committee recently passed a bill protecting transgender workers, along with gays and lesbians, from workplace discrimination.

In your federal workplace, your office should be following the guidelines set by the Office of Personnel Management (opm.gov): "Once a transgender worker has begun living and working full-time in the gender that reflects his or her gender identity, agencies should allow access to restrooms . . . consistent with his or her gender identity." Barbara is not a male in drag trying to game the system; she is, in all respects relevant to her co-workers, a woman.

That's true regardless of whether she goes under the knife; OPM adds that transitioning workers do not have to undergo surgery to gain access to the men's or women's room.

Career Q&A: When a background check goes awry 08/31/13 [Last modified: Saturday, August 31, 2013 6:24pm]

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