(dissenting).
[¶ 23.] I respectfully dissent. I would affirm the circuit court. I conclude that Claimant was properly denied unemployment benefits pursuant to SDCL 61-6-14.1 for employee misconduct. The Majority is in error when it concludes: (1) there was no evidence or finding that the conduct was violative of some code of behavior, and; (2) there was no evidence Claimant’s conduct results in some harm to the Employer’s interest.
[¶ 24.] As will be established, Claimant violated the following provisions of SDCL 61-6-14.1:
(1) Failure to obey orders, rules or instructions, or failure to discharge the duties for which an individual was employed; or
(2) Substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer; or
(3) Conduct evincing such willful or wanton disregard of a employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of the employee; *
As found by the ALJ, Claimant’s conduct clearly did not fall within a “good faith error in judgment” as argued by Claimant:
Claimant knew and understood that he was not to socialize with clients. On August 5, 1997, ■ in the early evening, he asks the client’s son if his mom is at home. The son does not know, so Claimant goes to the client’s home. She is not there, so he *265leaves her a note directing her to call him at a motel. When she calls him, he asks her out for a drink. She declines, but he does not give up. He asks her out for a drink the following night and she declines again. Claimant argues that he was only concerned about the client’s basement because she was having drainage problems. However, Claimant’s area of expertise is weatherization, not drainage. Claimant’s argument is not credible in light of the facts. If he was concerned about the client’s drainage problems, he could have called her during normal business hours. He did not have to visit her house, leave her a note directing her to call him at a motel, or ask her out for drinks. Claimant’s conduct bothered the client to such an extent that she reported him to Employer. This is not a good faith error in judgment. Claimant substantially disregarded Employer’s interests, (emphasis added).
[¶25.] The ALJ found, “[claimant knew and understood that he was not to socialize with clients.” As determined by the ALJ, the reasons and importance for this prohibition are two-fold: (1) clients tend to be vulnerable people, and (2) “socializing can create liability problems for Employer.”
[¶ 26.] The importance of protecting clientele seeking assistance for their homes was underscored by Abbie Rathbun, a Department Administrator, who investigated Claimant’s actions and participated in the decision to terminate him for misconduct:
I do believe that it [the DSS policy] is important, and it is due to the nature of the circumstances that, that they become clients of the department in the first place. They are in many cases very vulnerable. They have low esteem and they would be more apt to be subject to abuse.
In this ease, 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.
[¶ 27.] 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.
[¶ 28.] 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. “[A]c-tual or constructive notice of harassment and failure to take remedial steps to end it is the standard for employer liability.” Much v. McCain Foods, 479 N.W.2d 167, 170 (S.D. 1991) (citing Hall v. Gus Const. Co., Inc., 842 F.2d 1010, 1016 (8th Cir.1988)).
[¶ 29.] 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 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.
[¶ 30.] The Human Relations Act of SDCL ch 20-13 is not an exclusive remedy. In *266Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419 (S.D.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.
[¶ 31.] In Rehm v. Lenz, 1996 SD 51, 547 N.W.2d 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. See also Richards v. Lenz, 539 N.W.2d 80 (S.D.1995).
[¶ 32.] Most recently in Wiest v. Montana, 1998 SD 63, 580 N.W.2d 613, we reversed a grant of summary judgment and held that tort claims based on sexual harassment are appropriate for resolution by the jury.
[¶ 33.] In conclusion I respectfully disagree with the rationale of the Majority. There was admitted evidence by Claimant of misconduct that is in clear violation of SDCL 61-6-14.1(1), (2) and (3) as found by the ALJ and affirmed by the circuit court. There was harm from Claimant’s conduct in that it resulted in damage to Employer’s interests in the nature of potential litigation and its public image as a reliable source of assistance to citizens in need. The conduct also created a chilling effect on those less fortunate citizens of this State who petition government for help to meet the basic needs of everyday survival, such as housing and expect it to come without such a dubious price-tag.
[¶ 34.] KONENKAMP, Justice, joins this dissent.
Regulations SD Admin R 55:01:12:05(4) and (23) (1997) are consistent in that they authorized Claimant’s termination from employment for cause. Unlike our recent case of Wendell v. S.D. Dept. of Transp., 1998 SD 130, 587 N.W.2d 595, here Claimant did not attempt to regain his job by arguing that his termination was not for cause. Thus, we proceed from the point that Claimant's termination was properly for cause. SD Admin R 55:01:12:05(4) states as follows:
The employee has violated any department, division, bureau, or institution regulation, policy, or order or failed to obey an oral or written directions given by a supervisor or other person in authority].]
SD Admin R 55:01:12:05(23) states as follows:
The employee has discriminated against another person in the course of employment or has taken wrongful actions against another person which affect the vicarious or imputed responsibility of the state or any other state employee.
It was the violation of these rules that was the basis for Claimant's dismissal from his job. They are essentially the same in content as SDCL 61-6-14.1 the statute which now determines whether he is disqualified from unemployment compensation.
While there may be a distinction between grounds for discharge of an employee and grounds for denial of unemployment benefits, (See Appeal of White, 339 N.W.2d 306 (S.D. 1983)), here a comparison of SDCL 61-6-14.1 with SD Admin R 55:01:12:05(4) and (23) when applied to the facts of this case show there are none of relevance.