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Wernke v. State3/17/1999
abuse."
In this case, the client, Petra Hentschell was more vulnerable than most. She was a German immigrant who had limited familiarity with the English language. As the record establishes, these needy persons see the representative of the State as the person who will decide whether they get assistance for their house and if so, to what extent. Just to underscore that Hentschell got this point, when Claimant left the card at her home with the request to call him at his motel, he improperly added he was a "housing inspector" which he was not.
[ ] As noted by the ALJ, such conduct also carries negative consequences for the Employer as it may result in a lawsuit against the Employer. Clearly, it is against the Employer's interests to be sued with the potential of paying off a substantial judgment. It also results in damage to a governmental entity's public image. Thus, the claim of the Majority that there was no finding by the ALJ that Claimant's conduct could result in some harm to Employer's interest is simply wrong.
[ ] SDCL 20-13-24 makes it an unfair or discriminatory practice to provide adverse or unequal treatment for public services based on sex. Under SDCL 20-13-1(13) a public service includes any department program managed by the State of South Dakota. Violation of these provisions can result in a suit for damages. SDCL 20-13-35.1. " ctual or constructive notice of harassment and failure to take remedial steps to end it is the standard for employer liability." Huck v. McCain Foods, 479 NW2d 167, 170 (SD 1991) (citing Hall v. Gus Const. Co., Inc., 842 F2d 1010, 1016 (8thCir 1988)).
[ ] The Majority takes the unjustified position that no misconduct by exploitation occurred as there was only an "attempt" at socialization because Hentschell turned down Claimant's offer. Under this rationale, Claimant could repeatedly solicit every woman in the State with no violation of the applicable standard as long as his offers were refused. Under SDCL 20-13-1(16) an unfair or discriminatory practice based on sex includes "act or attempted act" which adversely affects public services. (emphasis added). This is also logical as from the client's point of view, as the client may feel a denial of the offer of socialization will have a negative effect on their request for weatherization assistance. Under the Majority rationale, those that need the protection the most, those that have turned down the socialization offer, are not protected from retaliation; but, those that run no risk of retaliation by the employee because they have accepted the socialization offer, are fully protected from retaliation that will never occur.
[ ] The Human Relations Act of SDCL ch 20-13 is not an exclusive remedy. In Kjerstad v. Ravellette Publications, Inc., 517 NW2d 419 (SD 1994) although there was a Human Relations Consent decree between the parties, we allowed claims of intentional infliction of emotional distress and invasion of privacy to go to the jury by female employees against a "peeping-Tom" boss and his corporate employer. While the facts in Kjerstad are admittedly more outrageous than those now before us, the potential for recovery of compensatory and punitive damages against the employer for sexual misdeeds of an employee would certainly give the employer justified cause to prohibit on the job socialization with clients which could lead to sexual solicitation and conduct by employees.
[ ] In Rehm v. Lenz, 1996 SD 51, 547 NW2d 560, an employer was sued for negligence, breach of fiduciary duty, fraud and deceit, breach of contract and punitive damages for sexual advances and a resulting relationship purportedly initiated by one of its counselors with a client. Se
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