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A dissenting judge in a PA Unemployment Compensation (UC) case outlines how an employee fired for a racial slur could get UC.
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Attorney Eric Meyer recently wrote about this case in his blog, “The Employer Handbook.”
In the case, Stephen Kraft vs. UC Board of Review, Kraft was denied UC benefits after he was fired for directing racial slurs at an African-American coworker.
Two of the three judges on the Board of Review denied the UC benefits but it is the dissenting opinion of the 3rd judge that is worth noting. The dissenting judge in
his opinion stated:
his opinion stated:
#1 The issue in this case is not whether it is acceptable
for an employee to ever use racial slurs. It never is.
for an employee to ever use racial slurs. It never is.
#2 The issue is not whether an employer can discharge an
employee for using a racial slur. It can.
employee for using a racial slur. It can.
#3 The issue in this case is whether an employee commits
willful misconduct by using a racial slur when the
employer has tolerated racial slurs in the past.
willful misconduct by using a racial slur when the
employer has tolerated racial slurs in the past.
#4 Willful misconduct requires an intentional or
deliberate disregard of standards of behavior which an
employer has a right to expect of an employee. Lack of
enforcement or inconsistent enforcement does not establish
such a standard of conduct with which it could reasonably
expect its employees to comply.
deliberate disregard of standards of behavior which an
employer has a right to expect of an employee. Lack of
enforcement or inconsistent enforcement does not establish
such a standard of conduct with which it could reasonably
expect its employees to comply.
Apparently in this case, it was discovered at the UC hearing that racial slurs and derogatory language were used by many people at the company, but the company never enforced any aspect of its anti-harassment policy. As such when Kraft was fired for using such language, he argued that others did it and nothing happened to them.In the end Kraft did lose his UC claim, but he may have an even stronger opportunity to get some remuneration if he files a discrimination lawsuit noting how the company singled him out for termination, while letting everyone else “slip through the cracks.”
Simply put, a work rule is not a work rule if it is not enforced.
If a company has a work rule that has been ignored and wants to reestablish it, then the company needs to republish the rule and announce the renewed enforcement to everyone, rather than just making an example of the next person who violates the rule.
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