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Minnesota Supreme Court Issues Decision on Sexual Harassment

By Sheila Engelmeier
and Thomas E. Marshall

On June 3, 2020, the Minnesota Supreme Court released its long-awaited decision on the viability of the severe or pervasive standard applied to the review of harassment cases under the Minnesota Human Rights Act (MHRA). This standard has faced significant scrutiny over the past few years as employee groups have demanded the Legislature abandon it because many courts have interpreted it extremely narrowly. Conversely, employer groups have lobbied to keep the standard to provide guidance to employers and guard rails to harassment litigation. In the end, both sides won.

Employees disliked the standard because in too many instances, harassment cases which appeared meritorious were not allowed to proceed to trial because a judge or appellate court did not consider the conduct to arise to the level of objectively “severe or pervasive,” when comparing it to prior case law. Employers, on the other hand, moved to dismiss harassment cases frequently because the standard, especially as interpreted by the appellate and federal courts, set an extremely high bar for employee harassment cases.

The Minnesota Supreme Court, in Kenneh v. Homeward Bound, in a unanimous decision, did not abandon the severe or pervasive standard, but clarified that older federal case law does not guide courts’ application of the standard under the MHRA. Instead, the Court noted that each case should be considered on its own facts and measured against societal standards for what is acceptable workplace behavior. The Court further noted that boorish conduct that may not have been actionable long ago, is no longer acceptable today. The Court wrote:

For the severe-or-pervasive standard to remain useful in Minnesota, the standard must evolve to reflect changes in societal attitudes towards what is acceptable behavior in the workplace. As we recognized 30 years ago, the ‘essence’ of the Human Rights Act is ‘societal change’; ‘redress of individual injuries caused by discrimination is a means of achieving that goal.’

The Court further encouraged courts to avoid granting summary judgment stating:

But we caution courts against usurping the role of a jury when evaluating a claim on summary judgment. If a reasonable person could find the alleged behavior objectively abusive or offensive, a claim is sufficiently severe or pervasive to survive summary judgment. (emphasis added)

Ms. Kenneh’s claim was dismissed at the district court level with the Court of Appeals affirming that decision. She alleged she suffered through rude sexual comments and vulgar gestures from a co-worker on multiple occasions, many occurring after she reported the conduct to human resources. It only ended when Homeward Bound fired her. Specifically, Ms. Kenneh testified:

I didn’t see him ten or twenty times a day, but I did see him, you know, a couple times a day when he was at work and at that location.” She testified that Johnson would show up to her office “every chance he got” and that “it was so persistent that she couldn’t keep track of it because that’s him.” According to Kenneh, Johnson would say something to the effect of “you look pretty” or “hey sexy” whenever he saw her. Kenneh explained that “this is somebody who talks to me sexually each and every chance he gets, every time he sees me. And he’s talking to me, he’s putting his tongue out, up and down, up and down.

Further, Ms. Kenneh claimed Mr. Johnson stated, “I will eat you. I eat women.” The Court noted that on a review of summary judgment, it “must accept the incidents as Kenneh described them,” noting what actually happened is “a credibility question for a jury.”

Ms. Kenneh’s claim is now reinstated and she may go to trial before a jury in the district court.

A second important clarification by the Supreme Court in Kenneh relates to whether employers’ policies can be used against them to require a higher standard. As Homeward Bound had a “zero tolerance” policy, Ms. Kenneh argued that Homeward Bound “waived its right to argue for a ‘severe or pervasive’ standard and should be bound by a zero-tolerance standard.” The Court dismissed Ms. Kenneh’s arguments on this point, stating:

We disagree. The only claims that Kenneh asserted in her complaint are statutory claims. The text of the Human Rights Act defines the conduct that is an “unfair employment practice” under state law. Minn. Stat. § 363A.08, subd. 2; see also Minn. Stat. § 363A.03, subd. 43 (defining “sexual harassment”). The terms of a non-contractual employment policy do not alter statutory definitions or the showing needed to establish a statutory claim under the Human Rights Act. Therefore, Kenneh’s reliance on the employee guide fails.

Sheila Engelmeier, one of the founders of Engelmeier & Umanah, welcomes the decision, as it accomplishes a fair result for employees and employers. Ms. Engelmeier stated,

Hooray for the Minnesota Supreme Court for acknowledging the world evolves. And, telling judges to let juries decide these questions, rather than take away trials from those who bring meritorious harassment claims.”

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