As the economy rebounds (we hope) and hiring begins again, employers flying out-of-town job candidates in for interviews will need to be wary of new Transportation Security Administration ("TSA") regulations that require anyone booking air travel to provide the passenger’s date of birth and gender. Employers who are not careful about how they implement this rule may increase their exposure to possible discrimination claims from rejected and disgruntled candidates.
49 C.F.R. § 1540.107(b), part of TSA’s Secure Flight program, requires an individual to provide name (as it appears on the ID to be used at the airport), date of birth (DOB), and gender when “the individual, or a person on the individual’s behalf, makes a reservation for a covered flight.” The purpose of the rule is to reduce the number of 4-year old girls and other "false matches" who accidentally end up on TSA “no fly” lists. While the regulation was enacted in December 2008, airlines have been slow to implement the necessary upgrades to their reservation systems. Some airlines may not be asking for the name, DOB and gender information now, but TSA expects all airlines to be in compliance by early 2010.
Risks of Discrimination and Invasion of Privacy Claims
While the Age Discrimination in Employment Act ("ADEA"), and similar state laws, do not expressly prohibit asking about a candidate’s age during the application process, most employers already know this is a risky no-no. EEOC regulations state that employer requests for DOB or age will be “closely scrutinized." Just asking a candidate for a date of birth and subsequently denying him or her the job may create an inference of discrimination, which can make any lawsuit much more difficult (i.e., expensive) to win. For that reason, employment law attorneys almost always advise clients to refrain from requiring DOB on job applications or asking applicants about their age.
Providing gender information to airlines may not affect the risks of gender-based claims (the applicant’s gender will almost always be obvious and you probably will not even need to ask the applicant). Oregon employers should be mindful, however, of state laws prohibiting discrimination based on sexual orientation, which Oregon regulations define to include "gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s assigned sex at birth.” The TSA and some advocacy groups are already debating the impact that the Secure Flight gender requirement may have on transgendered or gender-transitioning passengers. It could pose problems if, for example, the individual’s government-issued ID does not reflect gender or if the stated gender does not match appearance. This may present more difficulties for the passenger at the airport, rather than an employer booking travel, but employers should nevertheless be mindful of the law.
Finally, aside from risks of discrimination claims, applicants may have (legitimate) concerns about privacy or possible identity theft when providing DOB, gender, legal name, and other identifying information to airlines and prospective employers. While the TSA is implementing its own privacy-protection measures, it is not clear what airlines (or employers) must do to protect identifying information.
How Can Employers Comply With Conflicting Requirements?
There doesn’t appear to be any guidance from the TSA, EEOC or any other agency regarding how employers should comply with these apparently conflicting legal requirements. Until there is some official guidance (don’t hold your breath), employers should consider some of the following common-sense safeguards:
- Hiring managers and Human Resources personnel involved in the interviewing and hiring process should avoid booking air travel for job applicants if possible.
- Consider using outside travel agents to book travel for candidates. Develop a written policy (don’t handle it case-by-case!) ensuring those outside travel agents do not forward candidate DOB or gender information to hiring managers. Instruct outside travel agents on the policy.
- For larger employers with in-house travel agents, create written policies to ensure those agents do not provide gender and age information to any hiring managers or HR, especially those actually involved in interviewing and evaluating the candidate.
- Create written policies requiring those who book travel (whether in-house or outside travel agents) to inform candidates about why TSA requires the information and about how it will be (and will not be) used. Specifically, candidates should be told clearly that they are only being asked for the information because TSA regulations require it, that the information is only for arranging travel and will not be used as part of the interview or evaluation process, that it will not even be made available to hiring managers involved in hiring, and that it will be kept secure and confidential.
- If candidates refuse to provide the DOB or gender information, or if you are uncomfortable asking, you can ask the candidate to book his or her own travel and be reimbursed. (Remember, it’s the person booking the travel who must provide the DOB and gender information; if the candidate does it him or herself, you won’t need to know).
- Create written policies to keep applicants’ gender and DOB information secure and confidential to protect applicants’ privacy and exposure to possible identity theft. Do not keep this information in a personnel file. Ensure that any outside travel agents, airlines, or other vendors are taking appropriate steps to safeguard passenger identifying information.