Be Careful About Saying “Discrimination” In A WI Unemployment Proceeding- That Word Usually Has No Place There

On behalf of Peterson, Berk & Cross, S.C.

As an employee rights attorney, I routinely represent Wisconsin workers in unemployment proceedings.

It is common for me to read unemployment-related documents, and to see that my client has (before s/he retained me), used the word “discrimination” in talking about the employer’s actions to the unemployment office.

And almost always when I see that word “discrimination” used during an unemployment matter, it is a bad thing for the employee.

Usually, whether an employer may have discriminated or not is irrelevant for an unemployment proceeding.

For example, the most common type of Wisconsin unemployment dispute I see is about whether the employee (NOT the employer) committed misconduct prior to job termination. In other words, the whole issue for the unemployment proceeding is whether the employee did something really bad or not.

If an employee goes into a hearing or phone interview, the purpose of which is to decide whether the employee did something bad- and then the employee proceeds to point the finger at the employer to accuse it of doing something bad (e.g. “discrimination”)- that does not go over so well with the unemployment office. Nor should it. The purpose of the hearing is for the employee’s conduct to be reviewed, not the employer’s bad conduct such discrimination etc.

With this said, there are a few limited unemployment law issues and circumstances where a WI worker does need to address what an employer did wrong. But usually, workers are not aware of or addressing those legal issues when they’re calling an employer “discriminatory.” Usually, when a worker states that, the worker just feels the employer did wrong, and feels that an unemployment interviewer or judge will want to hear about that and/or will agree with that.

These are dangerous assumptions to make. You should not assume it is okay to talk about the employer’s “discrimination” unless you have reviewed and understand the legal standards, and know that what you’re saying is important under those legal standards. For most unemployment law standards (including discharge-for-misconduct as mentioned above), it is not necessary to mention “discrimination.”

Here is a list of Wisconsin unemployment legal issues and standards, at Wisconsin’s Department of Workforce Development’s website.

If you have a WI unemployment hearing coming up, chances are the hearing will cover one or more of these listed legal issues/standards.

Please consider reviewing the legal standards (or having a WI unemployment attorney brief you about them) before you decide to tell the unemployment office that your employer was “discriminatory”, or before you otherwise bring up topics concerning what you feel the employer did wrong.

While it is understandable that such things may be on your mind- and may well be true in some instances- you do not want to be offering up information that the unemployment office will find unnecessary and/or harmful to your own case.