Every person who works, and every company that does business in Minnesota must address the issue of sexual harassment in the workplace. Even if no such conduct has occurred at the workplace, it is still necessary for employers to have policies in place to address the issue should it arise. Because the topic is such a pressing issue, this article addresses the history behind Minnesota’s law and the specific requirements necessary to prove a claim. Part I of this article discusses the history. Part II discusses the evidence necessary to prove such a claim.
The Minnesota Human Rights Act is designed to prevent discrimination against women and men through prohibition of offensive sexual harassment by others. The original version of the MHRA, known as the Minnesota State Act for Fair Employment Practices (FEP) set out its policies in full as follows:
“Section 1. Declaration of policy. As a guide to the interpretation and application of this act, be it enacted that the public policy of this state is to foster the employment of all individuals in this state in accordance with their fullest capacities, regardless of their race, color, creed, religion, or national original, and to safeguard their rights and privileges of the inhabitants of this state and menaces the institutions and foundations of democracy. It is also the public policy of this state to protect employers, labor organizations and employment agencies from wholly unfounded charges of discrimination.”
According to the Minnesota Supreme Court the specific purpose of the Minnesota Human Rights Act is to rid the workplace of sex discrimination against men and women in the form of sexual harassment. This goal is accomplished by providing damages for “individual injuries” caused by such discrimination.
The legislative history indicates that sexual harassment was added to the Minnesota Human Rights Act in 1982 in response to the Minnesota Supreme Court’s Decision in Continental Can Co., Inc. v. The State of Minnesota in June 1980. Representative Rodriguez quoted from the Continental Can decision when she introduced the bill saying:
“The prohibition against sex discrimination in the state human rights act includes sexual harassment directed at an employee by fellow employees which impacts a condition of employment when the employer knew or should have known of the conduct alleged to constitute sexual harassment and failed to take timely and appropriate action.”
Representative Rodriguez also pointed out to the subcommittee and Full House Judiciary committee that the recommendation to pass the bill was based on work done by the taskforce of which Representative Rodriguez was a member. This task force issued a report after the bill was passed and found that federal law dictated that an employee claiming sexual harassment must show adverse effects on the “terms and conditions of employment and that these effects were directly linked to sexual harassment.” Further, the task force found that if the “employer can show that there were other reasons for adverse employment action, such as excessive absenteeism or poor work performance, the courts have held that sexual harassment did not constitute sex discrimination under Title VII.”
The task force also stated that a “company policy statement on sexual harassment may be simply a brief statement on its commitment to the prevention and elimination of sexual harassment, with reference to other company documents for information on procedures.” The task force recommended companies issue the following policy statement:
“It is the policy of ________ to maintain a work environment free of sexual harassment, a form of sex discrimination in employment prohibited by Title VII of the Civil Rights Act of 1964 and by the Minnesota Human Rights Act. Sexual harassment is unacceptable and will not be permitted. Any employee found to have acted in violation of this policy shall be subject to appropriate disciplinary action which may include discharge.”
On February 25, 1982 the Senate’s Judiciary Subcommittee on Law Reform amended the proposed bill to include the “knew or should have known” language into the definition of sexual harassment, in order to bring the bill into compliance with Continental Can. The bill was passed by the Senate Judiciary Committee with little discussion.
The foregoing legislative history of the Sexual Harassment portion of the Minnesota Human Rights Act illustrates that the act is designed to protect employees from sexual harassment from other co-employees or employers which affects the terms and conditions of their employment. The Act is not designed to protect an employee from themselves when they voluntarily participate in conduct and welcome it.
The foregoing also demonstrates that it is important for employers to issue a policy statement about sexual harassment and act immediately to remedy any harassment that is found.
Minnesota’s Sexual Harassment Statute: It’s History and the law (Part II)
Part II will be a discussion of the evidence necessary to prove a sexual harassment claim. 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. Klink v. Ramsey County by Zachirias, 397 N.W. 2d. 894, 901 (Minn. App. 1986) ; see also Bersie v. Zytec Corp., 417 N.W.2d 288, 290 (Minn.App. 1987).
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. Under the United States Code, the U.S. Supreme Court has held that an employer has an affirmative defense:
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.
Faragher v. City of Boca Raton, 118 S.Ct. 2275, 2293 (1998). 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 legislature’s recent action.
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 female workers. Klink v. Ramsey County by Zacharias, 397 N.W.2d 894, 901 (Minn.App. 1986).
The essence of a sexual harassment complaint is that the alleged sexual conduct was unwelcome. Thompson v. Campbell, 845 F.Supp. 665, 673 (D.Minn. 1994). Conduct is only unwelcome if the employee does not solicit or invite the conduct and the employee regards the conduct as offensive. Id.; see also Moylan v. Marie County, 792 F.2d 746, 749 (8th Cir. 1986).
In Meritor Savings Bank 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.”
Meritor, 477 U.S. at 69 (emphasis added).
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.
1 Bersie v. Zycad Corp, 417 N.W.2d 288, 290 (Minn.App. 1987)
If you have questions regarding the Minnesota Sexual Harassment Statute or your company policy manual needs review, contact BGS Attorney Bradley A. Kletscher.
1 Klink and all cases for the Eighth Circuit also required that the harassment be “based on sex”. However, the Minnesota Supreme Court ruled that this element did not have to be proved separate and apart from the elements of Minn. Stat. 363.01, Subd. 41 over a strong dissent by Justice Page. Cummings v. Koehnen, 568 N.W. 2d 418, 420, n. 2 (Minn. 1997).