Unemployment Hearing Case: Sexual Harassment Policy
By Dave Caldwell
Learn from an unemployment hearing case study about an employer’s sexual harassment policy and how to present your best case to increase your chance of winning.
You know how important unemployment claim hearings are. Being knowledgeable and prepared for different scenarios can mean the difference between a win or a loss, with tangible financial implications. Here is an example of a real unemployment hearing case about a sexual harassment policy for an Equifax client, and how it turned out.
Unemployment Hearing Case: Claimant was Discharged for Violation of the Employer’s Sexual Harassment Policy
The employer is a retail store. The claimant worked as a maintenance associate.
At the Hearing
The Employer’s Evidence: The employer testified that they began an investigation after a female employee complained that the claimant had touched her inappropriately, and that he had made her feel uncomfortable. The employer conducted an investigation which included a review of the employer’s security cameras. The witness testified that she viewed the security footage personally. The footage from the incident was very clear and showed the claimant walk up to the female employee from behind and with one hand grabbed her buttocks. The employer testified that the footage showed the claimant touching the female employee’s buttocks for several seconds. Review of security footage from later in the same evening showed the claimant again walked up behind the same female employee and reached around and touched the claimant’s hair, moving a piece of her hair off the employee's face and tucked it behind her ear. The employer discharged the claimant for a violation of the employer’s harassment policies which were entered into evidence. The employer did not produce a copy of the security footage for the hearing.
The Claimant’s Evidence: The claimant denied that he had grabbed the claimant’s buttocks. The claimant stated that the employer had not presented any proof that the claimant had engaged in any wrongdoing. The claimant admitted that he had moved a piece of the employee’s hair from in front of her eyes to behind her ear, but stated that she had asked him to do that as her hands were full. The claimant indicated that he was friends with the employee and did not believe that he had made her uncomfortable. The claimant stated that he was not given an opportunity to view the video evidence and did not have a chance to give his side of the story prior to discharge.
The Hearing Decision
The Hearing Officer found that:
The employer’s witness presented credible testimony about the content of the employer’s security camera footage.
The claimants denial was self-serving and did not overcome the evidence presented by the employer.
The Hearing Officer found the claimant’s behavior was intentional and willful misconduct and a disregard of the employer’s interests.
The claimant appealed. The claimant argued that:
He believed that the employee filed the complaint because she was angry with him that he was unable to give her a ride to work on that day.
The claimant pointed out that the employee filed the complaint weeks after the incident.
The claimant stated that the female employee had been showing the claimant her new tattoo and extended her arm behind her – which is why he walked up behind her to look. The claimant repeated his prior testimony that she had asked him to move the hair out of her face. He further indicated that the same night the employee had given the claimant her telephone number and asked him to contact her about riding to work together.
If the employee had really been touched, the claimant asserted that she would have reported the incident immediately.
The Board of Review Decision
The Board of Review (Board) reversed the decision stating that:
The employer failed to present first hand evidence to overcome the claimant’s denials.
The claimant was not given an opportunity to view the evidence or give his side of the story during the investigation.
The claimant’s statements were first hand testimony, and the employer only presented hearsay evidence. The Board specifically noted that the employer had reviewed a copy of the security footage and used that to make their discharge decision but had not produced a copy. The Board found that because the employer did not produce a copy of the security footage an adverse inference had to be drawn that the footage if produced would be favorable to the claimant.
Best Practice Takeaways
It is always best to present the best evidence possible and our Hearing Representatives are well skilled to assist you with this. If you have a recording of an event that led to discharge, presenting the video itself is crucial. Remember that testimony of the person who saw the video footage is second-hand and is not the same as presenting the video which is considered first hand testimony.
In most states, if a party has evidence available and has chosen not to present it for the hearing, the Administrative Law Judge (ALJ) can make a determination in regard to the missing information. The ALJ generally will infer that the evidence would have been adverse to the party who could have presented it and failed to do so.
**2020 Equifax client data. Past results, may not be indicative of your future success.
Please remember: Unemployment laws vary from state to state. The results in this case might be different from a case in your state. Also, always consult with your own legal counsel and advisors concerning your specific situation.