December 2018 Briefly: An Unemployment Case Analysis

Case Analysis: Repeated Misgendering of a Fellow Transgender Employee

Background

The claimant was discharged for repeated violation of the employer’s harassment policy. He was disqualified from unemployment benefits upon a finding that he was discharged for misconduct connected with the work. He appealed. A hearing was scheduled before an administrative law judge (ALJ).

At the Hearing 

The Employer’s Evidence: The employer testified that claimant, a recent hire, had received and signed the employer’s harassment policy. That policy specifically prohibited the use of improper pronouns, defined as “misgendering.” The claimant was introduced to a transgender coworker who asked to be referred to using female pronouns. The claimant referred to the coworker using male pronouns. The coworker asked the claimant to use the correct pronouns. The claimant continued using male pronouns. The coworker complained. The claimant and his supervisor met to discuss the coworker’s concerns. The claimant became belligerent and refused to answer questions. The supervisor ended the meeting, and later contacted the claimant with the intent to transfer him to another work site. During that conversation, the claimant admitted he had “made a mistake,” but continued to refer to his coworker as “him.”  He was discharged.

The Claimant’s Evidence:  The claimant admitted he had “made a mistake.” He also testified he used male pronouns because he believed that the coworker appeared to be male. He testified the coworker harassed him, which he reported to the employer. 

The Hearing Decision  

The ALJ found the claimant was discharged for misconduct connected with the work, and he was disqualified from benefits. The ALJ found that the claimant’s behavior violated a specific policy, and upon being confronted with his behavior, he continued it. This behavior showed a deliberate disregard for the employer’s policy and interests. The claimant appealed, arguing that the employer did not listen to his side of the story. He also stated they did nothing about the harassment he encountered from the coworker.

The Board of Review Decision

The Board of Review (BOR) agreed with the ALJ’s decision, and the claimant remained disqualified from benefits. The claimant’s repeated misgendering of the employee, despite the policy, the coworker’s request that he stop, and the conversation with his supervisor all played a factor. The claimant’s behavior showed a deliberate disregard for the employer’s interests, and was properly considered to be misconduct. The claimant’s allegations of harassment were not considered in the decision. The conduct  the claimant used during employment was the deciding factor in the case.                                                                                                             

Takeaways

1. Misgendering of transgender individuals can be considered to be disqualifying misconduct. The claimant in this case was given a specific policy that prohibited referring to transgender individuals by improper pronouns. The claimant was confronted with his violation of the policy, but continued to refer to his coworker incorrectly. The claimant’s refusal to comply with the policy was misconduct, despite his belief that his coworker appeared to be male.  In similar situations, be prepared to prove the existence of a policy, the fact that the claimant was aware of the policy, and that the claimant violated the policy.
2. In a discharge case, the focus is primarily on the claimant and his/her behavior. In this case, the claimant appealed using the argument that the coworker had harassed him. However, the claimant admitted at the hearing that he used incorrect pronouns even after being asked to use the correct ones because the coworker “appeared to be male.”  The claimant’s admissions proved he was aware of the policy, was confronted about violating the policy, and he continued to violate it for his own reasons. His deliberate, repeated behavior met the state definition of misconduct. There are discharge cases in which another employee’s behavior can be considered when determining if the claimant’s behavior is misconduct: Physical altercations and violations of policy where other employees are not discharged for the same behavior, among others. Contact your Equifax unemployment consultants with any questions.

Please remember:  Unemployment laws vary from state to state. The result in this case might be different from a case in your state.