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Minnesota Legislature Proposes Sweeping Change to Sexual Harassment Law


On April 23, 2018, Minnesota House Majority Leader Joyce Peppin introduced a bill to amend the Minnesota Human Rights Act (MHRA) to change the legal standard for sexual harassment.

The bill (HF 4459), which has wide bipartisan support and 34 cosponsors, has a companion bill (SF 4031) 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.

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.

Posted In: Sexual Harassment; Minnesota

Want to know more? Read the full article by at Littler Mendelson

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