| 5 min

Path 1: Discuss employment discrimination, harassment, and retaliation concerns based on gender identity

Published: May 25, 2021

Pat has been overwhelmed with the additional HR work and requested that Michelle, who has some background in HR, be assigned to assist. Michelle—like many others at the small company—wears several hats. Pat asks Michelle to follow up with Brandon, a team manager at the company, about a concern raised on his team. The organization is continuing its diversity, equity and inclusion (DE&I) initiatives, although it is still in its early stages of development.

Michelle sees Brandon’s picture pop up in their virtual call and starts in. “Hi Brandon! Pat asked me to follow up with you regarding a possible team member separation. What’s going on and how can I help?”

“Thank you so much for connecting with me, Michelle! This matter is definitely concerning me because I feel like there may be some risk involved in this separation. I feel like I might be a bit out of my depth. Let me walk you through why we think this employee should be terminated.”

“Of course.” Michelle replies. “Happy to help—that’s what I’m here for. Who is the employee?”

“The employee’s name is Taylor Jimenez.”

Michelle looks in the company’s HR system to find Taylor’s start date but does not view any other information. “So, Brandon. Where shall we start? What’s the reason you’ve decided to separate Taylor? Did she engage in conduct that violated company policy?”

Brandon quickly responds politely, “Taylor prefers to be addressed as ‘they’. And, no, they didn’t violate a policy. It’s more performance-based.”

“Ah, okay, got it! So, please explain to me what her performance is like—what are her shortcomings? What did she receive as a rating on her year-end performance review? It does not look like she has been with the company long. This will help me provide you with guidance.”

Brandon’s tone slows down and says, with intention, “Again, Taylor’s preference is ‘they.’” He continues. “To be honest, Michelle, this is a tough one. Taylor has a great attitude. They try hard every day and are quite outspoken. But they are not picking up the work like they should be. We’re a small team and as you know, we’ve provided Taylor multiple training and shadowing opportunities and, unfortunately, it’s just not sinking in. I’d like to provide them with a severance, if possible. I want to make sure they land on their feet.”

Michelle remembers her conversation with Alex and sighs. She is never going to get the hang of this. “My apologies for referring to your team member as a “she”—I am still adjusting. So, you mentioned that this one may involve some risk. Why do you think it’s risky? Sounds like a legitimate reason if they’re not performing.”

“Well, Taylor recently came out as transgender during a team meeting where we were discussing inclusion and unconscious biases. Taylor shared their story, which they had not done before. Most of their colleagues were shocked but curious. They asked Taylor a lot of questions and Taylor was quite candid. I fear Taylor might think the separation was retaliatory or discriminatory on our part because they disclosed their personal story and not because of the ongoing performance discussions and failure to meet the expectations outlined in their performance improvement plan (PIP). This is something that had been coming for some time.”

Michelle tilts her head. “Brandon are you saying that you think Taylor came out to the team to prevent or protect a termination for performance?”

Brandon pauses. “Possibly, I just don’t know, but I hope that disclosure doesn’t make any difference because I just can’t keep Taylor around with this kind of performance.”

Michelle nods her head. “Understood. I’ll discuss this with Pat. I’ll make sure Pat is aware and does not have any concerns. Please send me any documentation you have regarding Taylor’s performance and, so long as we are comfortable to move forward from the HR side of the house, I’ll set up the term to take place on Friday, and have her … I mean (Michelle chuckles nervously; feeling awkward as she corrects herself) their—I’ll never get used to that—final check ready and delivered.”

"Thank you, Michelle.” Brandon states, attempting to remain professional. “Goodbye.”

As Brandon ends the call, he is frustrated with Michelle’s approach to using the correct pronoun for Taylor. Brandon works hard to make sure that all of his team members feel comfortable and accepted on his team. He even struggled with bringing up Taylor’s possible separation, wanting to be absolutely sure that he was making the decision for the right reasons and that none of his own implicit biases were affecting the decision. Brandon also feels that Michelle might benefit from some introspection and training. He thinks about whether he should suggest that Michelle take the Project Implicit survey. With that in mind, he decides to ping Pat and Michelle’s manager, Toni, to see if they have time for a call. Brandon thinks they might want to be aware of Michelle’s treatment of his team member’s pronoun request.

Key considerations:

  • Checking in with HR or legal resources at your company is a great way to minimize possible implicit biases when making any employment-related decisions.

  • Offer training on unconscious biases to your workforce.

  • Workplace interactions, even if the intentions are good and meant to help, must be treated with sensitivity and care.

Would you like additional resources to learn more about the concept of gender identity, employee terminations, performance improvement plans or other topics discussed in this path?

📖 Learn why pronouns matter when building an equitable culture on TriNet blog

📖 Take a survey to test your own unconscious biases

📖 Learn more about how diversity in the workplace can help with your compliance and culture. Compliance, Culture, and Competitive Advantage: Finding Opportunities with Equity, Diversity, and Inclusion.

Legal disclaimer: Resources provided in this story is for informational purposes only; it is not legal, tax or accounting advice. This story may contain hyperlinks to websites operated by parties other than TriNet. Such hyperlinks are provided for reference only. TriNet does not control such websites and is not responsible for their content. Inclusion of such hyperlinks on this site does not necessarily imply any endorsement of the material on such websites or association with their operators.

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