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In a split decision denying unemployment compensation benefits to a truck driver who was fired for using a racial slur, a sole dissenting Commonwealth Court judge said the man should not have been found to have committed willful misconduct given his employer’s history of leniency regarding racial epithets.

A three-judge Commonwealth Court panel ruled 2-1 that Stephen L. Kraft, who is white, was rightfully denied benefits after his termination because he committed willful misconduct when he used an ethnic slur toward a black trainee. The majority, consisting of Judges Renee Cohn Jubelirer and Ellen Ceisler, flatly rejected Kraft’s argument that he could not have committed willful misconduct because the company’s anti-harassment policy was inconsistently applied.

“The existence of employer’s policy prohibiting harassment cannot be seriously questioned. It is clear from the uncontroverted evidence of record that claimant was aware, or should have been aware, of the policy. His failure to read the employee handbook does not absolve him of any obligation to abide by its contents,” Ceisler wrote.

However, Senior Judge Dan Pellegrini said in his dissent that Kraft received disparate treatment when he was fired because similar offenses at Allen Distribution were met with less severe consequences.

“The issue in this case is not whether it is acceptable for an employee to ever use racial slurs. It never is. The issue is not whether an employer can discharge an employee for using a racial slur. It can,” Pellegrini said. “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. Because an employee obviously cannot commit willful misconduct where an employer has permitted such conduct in the past, I respectfully dissent.”

Pellegrini said that, according to the record in Kraft’s unemployment compensation case, “the uncontradicted testimony provided was that employer has never fired any of the approximately 70 truck drivers it employs for using ‘salty’ or ‘foul’ language, racial slurs, and/or racial stereotypes in the workplace—despite all such conduct violating its written anti-harassment policy.”

Pellegrini added, “In no way do I condone claimant’s use of a racial slur. However, because employer has uniformly not enforced its work rule to discharge others who have used racial slurs, it cannot rely on its anti-harassment policy to establish that claimant committed willful misconduct.”

“Simply, an unenforced work rule is not a work rule but a piece of paper,” Pellegrini said.

Glenn Parno of Capozzi Adler in Harrisburg represents Kraft and did not respond to a request for comment.