Minnesota Sexual Harassment Statute: Its History and the law (Part II)

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In the last issue of IN BRIEF, we published Part I which discussed the history of Minnesota’s Sexual Harassment Statute. Part II will be a discussion of the evidence necessary to prove a sexual harassment claim given a recent change in Minnesota law. While describing the evidence, cases are cited to support this article. Cites will be listed at the end of the article for those who may want to do legal research.

A Plaintiff has the ultimate burden of proving that she suffered sexual harassment.1 Prior to the 2001 regular session of the Minnesota legislature in order to prove his case, Plaintiff had to establish:

1. plaintiff is a member of a protected group;
2. Plaintiff was subject to unwelcome sexual harassment;
3. the harassment affected a term, condition or privilege of employment; and
4. the employer knew or should have known of the harassment and failed to take proper remedial action. 2

In 2001 the legislature amended section 363.01, subd. 41 to remove the fourth element that “the employer knew or should have known of the harassment and fails to take timely and appropriate action.” The removal of this language was not intended to create strict liability (ie. that is the employer is liable automatically if an employee harasses) rather, the change was intended to make Minnesota’s statute consistent with Title VII of the United States Code.3 Under the United States Code, the U.S. Supreme Court has held that an employer has an affirmative defense: 4

If no “tangible employment action, such as discharge, demotion, or undesirable reassignment,” is taken, an employer can avoid liability by proving, by a preponderance of the evidence: (a) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) that the plaintiff employee unreasonably failed to take advantage of the preventive or corrective opportunities offered by the employer, or otherwise failed to avoid harm.

It is anticipated that the Minnesota State Courts will adopt a standard similar to the U.S. Supreme Court in the near future in light of the Minnesota legislature’s recent action.3

In evaluating a sexual harassment claim, the Court must examine the language and conduct by looking at the nature, frequency, intensity, location, context, duration and object or target in determining its effects on disparate treatment of workers.1

The essence of a sexual harassment complaint is that the alleged sexual conduct was unwelcome.5 Conduct is only unwelcome if the employee does not solicit or invite the conduct and the employee regards the conduct as offensive.6

In Meritor Savings Bank7 the Court discussed the issue of welcomeness:

“The gravamen of any sexual harassment claim is that the alleged sexual advances were “unwelcome” (citation omitted). While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the “voluntariness” of respondent’s participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary. . . . While “voluntariness” in the sense of consent is not a defense to such a claim, it does not follow that a complainant’s sexually provocative speech or dress is irrelevant as a matter of law in determining whether he or she found particular sexual advances unwelcome. To the contrary such evidence is obviously relevant. The EEOC Guidelines emphasize that the trier of fact must determine the existence of sexual harassment in light of the “record as a whole” and the “totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.”

The best policy for any business to follow is a zero tolerance policy of any type of sexual conduct in the work place. This does not mean that if sexual conduct occurs liability will attach. The reason for the zero tolerance policy is to avoid any colorable claim that could be brought. This avoids the expense of litigation. It is a must for any business to put in place a sexual harassment policy that is posted. In addition, all employees should acknowledge receipt of the policy. This will enable the employer to establish its affirmative defense.

If you have any questions regarding the Minnesota Sexual Harassment Statute or your company policy manual needs review, contact Bradley A. Kletscher.

1 Bersie v. Zycad Corp, 417 N.W.2d 288, 290 (Minn.App. 1987).
2 Klink v. Ramsey County by Zachirias, 397 N.W. 2d. 894, 901 (Minn. App. 1986).
3 Minn. House Rep. Civil Law Committee Meeting Tape 2/26/01;
Senate Judiciary Committee Meeting Tape 6/13/02;
The Rights Staff, Minnesota Department of Human Rights (June 2001).
4 Faragher v. City of Boca Raton, 118 S.Ct. 2275, 2293 (1998).
5 Thompson v. Campbell, 845 F.Supp. 665, 673 (D.Minn. 1994).
6 Id.; see also Moylan v. Marie County, 792 F.2d 746, 749 (8th Cir. 1986).
7 Meritor Savings Bank v. Vinson, 477 U.S. 57, 69 (emphasis added).

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