On April 23, 2018, Minnesota House Majority Leader Joyce Peppin introduced HF 4459, a bill to amend the Minnesota Human Rights Act (“MHRA”) to change the legal standard for sexual harassment.  The bill, which has wide bipartisan support and 34 cosponsors, has a companion bill in the Senate sponsored by Senator Karen Housley.  If passed, the bill would do away with the “severe or pervasive” standard for sexual harassment claims, but is silent on the replacement.  As drafted, the bill would likely create confusion and uncertainty for employers, employees, and the courts statewide.

The History of the “Severe or Pervasive” Standard

The Minnesota Supreme Court recognized in 1980 that sex harassment was actionable under the MHRA in Continental Can Co., Inc. v. State.¹  Lacking any guidance from the Legislature, the court turned to the language in Title VII guidelines promulgated by the federal Equal Employment Opportunity Commission (“EEOC”) to decide whether sexual harassment was actionable under the MHRA.  Those guidelines characterized “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” as sexual harassment when “such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.”²  The court adopted this standard and upheld the Department of Human Rights’ determination that the plaintiff had experienced sexual harassment.

In 1982, the Legislature amended the MHRA and essentially imported in full the language from the EEOC guidelines and codified the decision in Continental Can.  The amended statute defined sexual harassment as “unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when . . . that conduct or communication has the purpose or effect of substantially interfering with an individual's employment . . . or creating an intimidating, hostile, or offensive employment . . . environment.”³ That definition remains in effect today.

Four years later, the United States Supreme Court first recognized sexual harassment as prohibited sex discrimination under Title VII of the Civil Rights Act of 1964.⁴  The Court found that in order for conduct to rise to the level of harassment, it “must be sufficiently severe or pervasive to alter the conditions of [the employee’s] employment and create an abusive working environment.”⁵  The Court later clarified that under the severe or pervasive standard the conduct or communications must be both objectively abusive, i.e. abusive as judged by a reasonable person, and subjectively abusive, i.e. perceived by the employee as abusive.⁶  Inherent in the objective component of the standard is societal expectations of what conduct crosses the line, and what does not.

Given that the language in the MHRA came directly from the regulations interpreting Title VII, the Minnesota Supreme Court adopted the severe or pervasive standard in interpreting sexual harassment claims under the MHRA.  Key to the analysis is whether the complained-of conduct was severe or pervasive.  One incident of improper touching could rise to the level of severe, or many mildly offensive comments could be pervasive – either situation could meet the standard.

Most recently, the Minnesota Supreme Court affirmed the severe or pervasive standard in Rasmussen v. Two Harbors Fish Co.⁷  In Rasmussen, the employees’ supervisor made multiple comments of a sexual nature and touched one employee on her backside.  The trial court dismissed the employees’ claims, but the Minnesota Supreme Court reversed and sent the case for trial for a determination of liability under the severe or pervasive standard.

Representative Peppin’s Proposed Amendment

Calling it the “first step toward one day overturning this Supreme Court [severe or pervasive] precedent,” Representative Peppin proposed HF 4459.  The bill adds language to the MHRA that provides: “[a]n intimidating, hostile, or offensive environment . . . does not require the harassing conduct or communication to be severe or pervasive.”  If enacted, the change would go into effect on August 1, 2018 and would not apply retroactively.

Employer Reaction

The proposed language has created concern and uncertainty for employers.  Businesses across the state have operated for years with a clear understanding about what types of behavior constitute sexual harassment and have developed policies and procedures to address and correct inappropriate employee behavior.  The proposed change not only undermines those efforts; it also fails to provide any alternative standard for employers, employees, or the courts, to apply.

On April 26, the House Civil Law and Data Practices Committee held a hearing on the proposed amendment.  Representative Peppin indicated that the intent of her amendment was to return harassment to the plain language of the statute, which would find harassment if conduct or comments “substantially interfere” with the employment environment.  There was also discussion that the intent of the amendment was not to overturn any other aspect of harassment law, including both the subjective and objective standards.  Some testifying witnesses and Representative Loonan expressed concern that there was no definition or guidance concerning the term “substantially interfere,” but the amendment passed the Committee by voice and will move to the House floor for debate.

Whatever the purported intent of the members addressing the issue, the change only states that harassing conduct or communication need not be severe or pervasive.  Of course, the severe or pervasive standard was the direct result of this lack of clarity from the Legislature.  So the amendment is essentially telling the courts, “we don’t agree with your interpretation of ‘substantially interferes’ but we are not going to give you an alternative.”  It leaves to the courts the task of creating and applying an alternate standard.

Whatever the intent of the bill, the result is far from clear.  A judge may interpret the change to require any subjective belief that a single statement is unwanted as actionable harassment leading to employer liability.  Employers could expect the plaintiff’s bar to argue that regardless of the objective view of the actions, if the result of one comment “substantially interfered” with a particular employee’s work performance, that is actionable harassment.

Alternatively, a judge may decide that conduct or communications must be both severe and pervasive because such a definition conforms to the language of the statute.  Still other judges may require “egregious” behavior or behavior that “shocks the conscious” before harassment becomes illegal.  And while the Legislature may disclaim any intent to overturn other aspects of harassment law, such as the objective and subjective requirements, to the extent those requirements are functions of the severe or pervasive standard, employers could expect every aspect of harassment law to be under attack by the plaintiff’s bar.  The only certainty if the amendment is signed into law is that it will take years for cases to wend their way through the courts until a new standard is finalized.  In the interim, businesses will struggle to respond to harassment claims with no guidance from the Legislature or the courts.

The Legislative session ends on May 21.  The bill will continue to have hearings and require consideration over the next four weeks.  The bill has already passed out of committee and is headed to the House floor for a full vote. The Senate companion bill was referred to the Senate Judiciary Committee, but the Committee has yet to take action on the proposal. Littler is following the proceedings and will provide periodic updates on significant developments.  Littler will also present a webinar to discuss the bill and its implications for employers.

The #MeToo movement continues to be a powerful force for change, and the Legislature appears to recognize the movement’s importance by these recent actions.  Employers are key stakeholders in these issues and no single event will have a greater impact on their employees than this potential sea change.  These changes have the potential to create a unique and unclear standard in Minnesota that will make it different from other states and federal law.  Whether the Legislature enacts this change or not, Littler is available to provide guidance to employers about how to navigate these issues moving forward.