With the proliferation of the #MeToo movement and increased focus on sexual assault and harassment in the workplace, the State of Minnesota is attempting to remedy the issue of what many believe is too few meritorious harassment claims being dismissed or being thrown out on summary judgment based on the law as it is written. In order to fix the situation, the House Judiciary and Civil Law Committee unanimously approved the following amendment to the Minnesota Human Rights Act:
Subd. 43. Sexual harassment. (a) “Sexual harassment” includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when:
(1) submission to that conduct or communication is made a term or condition, either
explicitly or implicitly, of obtaining employment, public accommodations or public services, education, or housing;
(2) submission to or rejection of that conduct or communication by an individual is used
as a factor in decisions affecting that individual’s employment, public accommodations or public services, education, or housing; or
(3) that conduct or communication has the purpose or effect of substantially interfering
with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public
accommodations, public services, educational, or housing environment.
(b) An intimidating, hostile, or offensive environment under paragraph (a), clause (3),
does not require the harassing conduct or communication to be severe or pervasive.
The change would come into effect in August 1 of 2019, and would only apply to acts occurring after that date.
The standard for hostile work environment sexual harassment claims was created by the U.S. Supreme Court in the case of Meritor Savings Bank v. Vinson, and established that in order to prevail, a plaintiff must prove that the challenged conduct was severe or pervasive, created a hostile or abusive working environment, was unwelcome, and was based on the plaintiff’s gender.
Severe harassment is harassment that occurs infrequently, but is more shocking to the conscience. Pervasive harassment includes less invasive behavior, but which occurs more frequently over a period of time.
If these changes were to take place, it would diminish the threshold necessary for harassment claims to prevail, but at the same time would make it incredibly difficult for employers to defend themselves when a complaint of harassment is received. Basically, it would open the employer up to liability on the first proven incident of harassment on the basis of sex.
This is not the first time we have seen this amendment, and the bill obviously did not become law during the last session. However, employers need to pay attention to this bill and stay prepared for any changes that occur to the law. We will keep apprised of any changes that occur with the harassment law, and let you know as soon as we find out. If you need help with your current harassment or discrimination policy, contact the Wiley Law Office, for advice that works.