dissenting.
Because I believe that Clarice Poplin’s (Claimant) conduct rose to the level of willful misconduct, making her ineligible for unemployment compensation benefits, I respectfully dissent.
The majority states that, absent a work rule regarding racial comments, “in order for Claimant’s comments to be deemed willful misconduct, either they must be of such character that any reasonable person would know *785that they were offensive or inappropriate under the circumstances in which they were made, or the credited facts must establish that claimant actually knew or intended them to be so.” (Majority op. at 784.) Even if this were the test to be applied,1 contrary to the majority, I believe that the test was satisfied in this case, where Claimant’s own testimony plainly demonstrates that she made statements she knew to be inappropriate, and persisted even after realizing that her inappropriate remarks had caused offense.
Although the majority places great weight on the referee’s finding that Claimant did not intend her statements to be offensive, I do not believe that we can or should defer to the referee in this matter. As the majority notes, the Board, which is the ultimate fact-finder in unemployment cases, made no such finding. The majority appears untroubled by this omission, and seems to find it sufficient that the Board did not reject the referee’s finding2 because, as the majority states, “it is indeed the only reasonable one that could be drawn from the record.” (Majority op. at 784.) I would disagree.
At the administrative hearing, Claimant admitted making the comment, “one more K and we could have the Ku Klux Klan here.” (N.T. at 11.) Claimant stated that, after making this comment, she noticed her coworker put his head down on the desk, and she immediately apologized to her co-worker. Id. Claimant testified that she did so because “you’re not supposed to say anything in front of a black.” Id. Claimant then went on to ask her co-worker “did you ever feel like you wanted to be white?” Id. at 13.
Based on Claimant’s own testimony, it is apparent that after making the first comment, Claimant was aware that she had upset her co-worker, and that her remark had violated expected standards of conduct. Despite this awareness, Claimant then went on to make another racially insensitive and potentially offensive comment. Thus, I would refuse to dismiss Claimant’s comments as either ignorant thoughtlessness or innocent mistakes. Because Claimant made such comments in disregard of standards of conduct of which she was actually aware, I believe the Board correctly concluded that Claimant’s conduct rose to the level of willful misconduct, and I would affirm.
. Unlike the majority, I do not feel that employees are in need of guidance from their employer when it comes to racial insensitivity. (See majority op. at 784.) Indeed, I believe that racially insensitive remarks areperse unacceptable at the workplace and should not be tolerated under any circumstances. As the majority notes, and as this case vividly demonstrates, racial understanding is indispensable to a productive and harmonious workplace. Thus, even in the absence of set standards of conduct, an employer need not tolerate behavior which is disruptive to employee relations; an employer should be able to deal with such behavior by terminating the offending employee for his or her misconduct.
. The majority speculates that the Board found Claimant’s intent was irrelevant because the remarks were in complete disregard of the standards of behavior that an employer has a right to expect from its employees and, thus, constituted willful misconduct. (Majority op. at 784, n. 2.) As I indicated previously, I would agree with the Board that an employee who makes racially insensitive remarks to a co-worker does, in fact, act in total disregard of acceptable workplace standards.