Wednesday, June 6, 2012


In this case, the Appeal Board appears to set the standard that the conduct must be offensive to a reasonable person to be misconduct (emphasis supplied):

"Mailed and Filed: JANUARY 08, 2010

IN THE MATTER OF: Appeal Board No. 547526

OPINION: The credible evidence establishes that the claimant violated the employer's zero tolerance policy regarding sexual harassment and sexual discrimination by making lewd sexual comments and gestures toward a male subordinate and two female subordinates. In reaching this conclusion, it is noted that the female subordinate, who was later promoted, gave credible first hand testimony that over a period of months the claimant made lewd sexual comments and gestures and propositioned her for sexual relations. We find the testimony of this female subordinate to be credible because although she is no longer working for the employer she was willing to testify with particularity about the lewd sexual remarks and gestures made by the claimant. Because the claimant demonstrated a pattern of sexually inappropriate behavior towards the female subordinate who was later promoted, we credit the hearsay testimony of the employer over the claimant's self-serving denial of wrong doing with respect to the other female subordinate and the male subordinate. The claimant was aware of the employer's sexual harassment and sexual discrimination policy and signed an acknowledgement of this policy. Claimant's behavior demonstrated a pattern of sexually offensive actions towards subordinates and clearly violated the employer's zero tolerance policy for sexual harassment and discrimination. His conduct was offensive to a reasonable person. Even if the subordinates did not object to the claimant's behavior, as a manager the claimant knew or should have known that offensive remarks in the workplace are inappropriate.(AB No. 503568; AB No. 519706) The claimant's behavior was contrary to the employer's interests and fostered a hostile and intimidating work environment. Under the circumstances, the claimant's actions rise to the level of misconduct. Accordingly we conclude that the claimant was separated from his employment under disqualifying circumstances."

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