dissenting.
I am unable to accept a disposition of this case that does not give some guidance concerning the meaning of the term “sexual harassment.”
The majority says that sexual harassment may constitute “good cause” for voluntary termination of employment under I.C. § 72-1366(e). The majority cites Small v. Jacklin Seed Co., 109 Idaho 541, 709 P.2d 114 (1985), for this proposition. In Small, the Commission denied a claim for unemployment benefits where an employee voluntarily quit her employment, alleging sexual harassment. This Court remanded the case to the Commission for reconsideration.
The Commission states in its decision in the present case that following remand in Small, the Commission found that the claimant had established that she had been sexually harassed by her employer and had good cause to leave her employment. Apparently, the Commission had some idea about the meaning of “sexual harassment.” However, the only guidance the Commission has given as to its understanding of the meaning of the term is the portion of its decision in this case stating that in Small, “the Claimant experienced subtle sexual comments and innuendos, overt advances of a sexual nature, and the supervisor’s taking photographs of female employees while bent over.”
Here, in denying claimant unemployment compensation the Commission stated that the actions of Dr. Siemsen were unprofessional, but “did not subject the Claimant to sexual harassment.” Apparently, the Commission knows sexual harassment when it sees it, but has not developed a definition of the term.
The majority decision eschews defining the term on the ground that it does not appear in the statute. In my view, if sexual harassment may constitute good cause under I.C. § 72-1366(e), and if the Commission is adjudicating rights to unemployment compensation based on an ad hoc *7application of “sexual harassment,” it is our obligation to define the term.
I accept that the EEOC Guidelines are not applicable. However, we should not leave the term without a legal meaning. Otherwise, I do not see how we can review a decision of the Commission that states, as the decision in this case does, that the actions of an employer did not constitute sexual harassment. Without giving the terms some meaning, we will be left to accepting the Commission’s decision without review.
One court has said:
The theory [of sexual harassment] rests upon conduct which can be characterized as sexual. “Sex” in this instance does not mean gender. Rather, it is used pursuant to its more popular meaning. Thus, while the harassment may be directed at a member of the female sex, it is a harassment which plays upon the stereotypical role of the female as a sexual object.
Turley v. Union Carbide Corp., 618 F.Supp. 1438, 1441-42 (S.D.W.Va.1985).
Harassment is used “to describe words, gestures and actions which tend to annoy, alarm and abuse (verbally) another person.” BLACK’S LAW DICTIONARY 645 (5th ed. 1979). Using these elements, I would define sexual harassment to be words, gestures or actions which tend to annoy, alarm or verbally abuse another person of either sex by playing upon the stereotypical role of the person as a sexual object.
In its findings of fact, the Commission recites the allegations of the claimant and Dr. Siemsen’s responses. The Commission does not resolve which version of the facts it accepted. The claimant alleged:
1. While she was bent over filing, Dr. Siemsen intentionally brushed his pelvis area against her buttocks.
2. When she came to visit Dr. Siemsen during her leave of absence, he hugged her, manipulating his body back and forth against her breasts, and told her how good she felt.
3. When a mechanic came to the doctor’s office to return the claimant’s car, Dr. Siemsen came out and stated that the claimant was not going to leave with the mechanic until the mechanic had a physical examination.
4. On six occasions Dr. Siemsen would stand in the hallway in the claimant’s view and unzip his pants to tuck in his shirt and, while doing so would “manipulate his genitals.” The claimant said she knew he was manipulating his genitals because it took forty-five seconds to a minute for him to tuck in his shirt.
5. On one occasion the claimant told Dr. Siemsen she was leaving to go to another doctor for her annual pelvic exam. Dr. Siemsen told her he would do it for her.
6. Dr. Siemsen called the claimant into an examination room while he was performing various types of examinations on male patients.
7. Dr. Siemsen encouraged an eighty-two year old male patient to think that the claimant was romantically interested in him.
The Commission concluded that the most outrageous allegation was that Dr. Siemsen took forty-five seconds to tuck in his shirttail. I am uncertain whether this statement means that this was the only allegation the Commission believed, or whether the Commission did not consider the other allegations constituted sexual harassment. At the very least, the Commission should state which version of the facts it accepted and why the facts did not amount to sexual harassment.
I would vacate the Commission’s order and remand with directions to the Commission to state the facts it finds were established by the evidence and whether those facts constituted sexual harassment in light of the definition of sexual harassment given above.
McDEYITT, J., concurs.