Jessica E. Schwie & Lizzie Brodeen-Kuo, Kennedy & Graven, Chartered.
Flowing from the #MeToo movement and a recent decision from Hennepin County District Court, the Minnesota Legislature revived the dispute regarding the standard for sexual harassment claims under the Minnesota Human Rights Act (MHRA). Some say the standard of review, which mirrors the federal standard under Title VII, is too high and prevents employees who have endured harassment from rightfully obtaining justice to correct the wrongs.
The standard for establishing a claim, which requires evidence of severe or pervasive harassment, came about through legislative changes aimed at mirroring federal law. Courts have followed the legislature’s lead in interpreting the MHRA consistent with those federal statutes and guidelines. A new judicial opinion coupled with recent actions by the Minnesota Legislature may signal an impending change to the standard of review for harassment cases in Minnesota.
History of the Severe or Pervasive Standard
In 1980, after examining federal case law developed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., the Minnesota Supreme Court first recognized a claim for sexual harassment under the MHRA in Continental Can Co., Inc. v. State. Two years later, the Minnesota Legislature amended the MHRA to make the Act nearly identical to pertinent provisions in Title VII, create uniformity with guidelines promulgated by the federal Equal Employment Opportunity Commission (“EEOC”), and make the MHRA consistent with federal case law. As a result, sexual harassment is defined as, among other things, sexually motivated physical contact or other verbal or physical conduct or communication that has the purpose or effect of interfering with an individual’s employment or creating a hostile work environment.
Before liability will attach to an employer or supervisor for harassment, an employee must establish that the harassment was severe or pervasive from the subjective point of view of the plaintiff-employee and the objective point of view of a reasonable person. The level of conduct must be so severe or pervasive that it “had the purpose or effect of substantially interfering with a plaintiff’s employment or created an intimidating, hostile, or offensive employment environment under the MHRA.”
2017 Order from Hennepin County District Court
In December 2017, on a motion for summary judgment, Hennepin County District Court Judge Mel Dickstein applied the severe or pervasive standard to determine whether the plaintiff-employee had put forth enough evidence of either severe or pervasive harassment to proceed with her claim to trial. Judge Dickstein discussed seminal Minnesota precedent addressing the issue, including Rasmussen v. Two Harbors Fish Co., Geist-Miller v. Mitchell, and Gagliardi v. Orto-Midwest, Inc., as well as Eighth Circuit precedent, including Duncan v. General Motors Corp. Noting the “high bar set for a plaintiff seeking to pursue an action for damages as the result of sexual conduct creating a hostile work environment,” Judge Dickstein went on to opine:
Our courts need to revisit the issue of what facts constitute those sufficiently severe or pervasive acts to alter the conditions of the victim’s employment and create an abusive working environment. Cases which emanate from the 1980’s, 1990’s, or even the first decade of the present millennium no longer accurately reflect conduct that alters the conditions of a victim’s employment and creates an abusive working environment. Times change, and with them so too do the standards of conduct. This Court doubts that anyone would reasonably find some conduct, once found unactionable, is still unactionable today.
. . . There has been a sea-change in cultural attitudes toward sexual harassment. . . . It is not a leap to say that gone are the days when men can use the workplace to further their prurient interests. Unwanted sexual advances, belittling sexual banter, touching, and mocking sexual language are no longer viewed as merely boorish, obnoxious, chauvinistic, or immature—they should be actionable.
The 2018 Legislative Deliberations
Judge Dickstein’s Order became a catalyst for the Minnesota Legislature to consider a change to the MHRA in spring 2018. Minnesota House Majority Leader and Chair of the Subcommittee on Workplace Safety and Respect, Joyce Peppin, R-Rogers, along with approximately 35 others prepared and submitted House File 4459 to amend the MHRA. The bill, if passed, would have amended:
the definition of “sexual harassment” in the Minnesota Human Rights Act (MHRA). . . . This bill provides that the harassing conduct or communication does not have to be severe or pervasive to be discriminatory sexual harassment under the MHRA.
The bill was referred to the House Civil Law and Data Practices Policy Committee, which scheduled a hearing on the matter.
Numerous attorneys from the Minnesota Bar representing plaintiffs, defendants, businesses and others appeared to testify on the state of the law, practical implications, and the need for guardrails in order to properly address harassment claims in litigation. Following the hearing, the House approved the bill. Speakers noted the need for guardrails to prevent the harms from frivolous litigation of minor workplace insults (e.g. placing a hand on another’s shoulder on a rare occasion), while still affording justice to individuals who experience abusive work environments.
A companion bill, SF4031, was introduced to the Minnesota Senate by Senator Karin Housely and was referred to the Senate Judiciary and Public Safety Policy and Finance Committee. Ultimately, the Senate Committee did not take the bill up for debate, and the proposed legislative amendments died by the close of the 90th legislative session.
No one disputes the necessity of a standard for determining whether certain conduct constitutes harassment. The question becomes: does the standard have to change to eliminate the need for evidence of either severe or pervasive conduct? Arguably, it does not. Some local businesses asserted at the legislative hearing that they have established training programs, behavioral measures, and protocols based upon the law—to change it now would create uncertainty and pose unfair burdens. The doctrine of stare decisis exists for this very reason.
Yet, the judiciary has also deftly concluded that stare decisis is “not an inflexible rule of law” and that departure from prior decisions should occur in certain circumstances, including when society has substantially changed so as to render the prior decision unworkable. It is reasonable to conclude, as Judge Dickstein did, that the pendulum has swung too far and case law permits dismissal of seemingly meritorious claims, by today’s norms, prior to trial. But perhaps that pendulum swing should not be corrected through legislation. Instead, an evaluation of the facts on a case by case basis may serve to correct any discrepancy between today’s norms and stare decisis.
Here is where some would say the rubber meets the road. At the hearing on the House file 4459, one of the Committee Members aptly commented that he believed a legislative remedy was necessary because the legislature has been sending signals to the judiciary for years that its standard is too high and prevents meritorious claims from proceeding. Further examination of the case law, however, begs the question: Is it really the severe or pervasive standard that is too high—or, is it the standard of judicial review that is too high?
In Harris v. Forklift Systems, Inc., the United States Supreme Court concluded that whether conduct is severe or pervasive is a question of fact which should be resolved by a jury. In other words, the issue of whether any given conduct constitutes harassment is best left for a jury of one’s peers. The jury will reach a consensus decision on acceptable behavior in the workplace as measured by the prevailing cultural norms. The Court made this conclusion even though, as Justice Scalia pointed out in his concurring opinion, the ultimate question is left to “virtually unguided juries” to decide whether particular conduct is “egregious enough” to merit an award of damages.
Case law subsequent to Harris, however, allows for the argument that “the ultimate determination of whether conduct is sexual harassment as defined by the MHRA is a question of law.” In other words, a judge or a panel of judges must determine whether particular conduct is sufficiently severe or pervasive, not a jury of one’s peers, who might arguably be more in tune with current norms.
The court in Rasmussen did not reach and resolve the question of whether conduct is severe or pervasive is a question of fact for the jury; a choice Justice Wilhelmina Wright sharply criticized. In her concurring and dissenting opinion, Justice Wright made a case for applying two different standards: (1) whether the conduct is objectively harassment as defined by the MHRA as a mixed question of law and fact subject to de novo review, and (2) subjectively as a question of fact subject to erroneous review. While mixed questions of law and fact do not go to the jury, Justice Wright concluded that such a standard would best meet the legislative intent underlying the MHRA. Justice Wright opined that by treating the issue of whether conduct is objectively severe or pervasive as a mixed question of fact and law, the judiciary would be able to best balance the multiple and competing needs of the parties and the public as a whole in a manner consistent with what the legislature intended.
No cases since Rasmussen have addressed the question of whether the severe or pervasive determination is a question of fact for the jury. Therefore, the question arguably remains one of law to be decided by judges who are generally called upon to apply the doctrine of stare decisis. Therefore, judges are likely to continue to follow the precedent set in Rasmussen, Geist-Miller, and Duncan. Under these circumstances, a case may lie for legislative change to correct the swing of the pendulum in order bring balance to all of the competing needs highlighted by Justice Wright. As a final consideration: perhaps, if the bar for conduct is set lower, then a better balance between the employee and the employer as well as predictable results could likely be achieved by corresponding modifications of the law related to what happens after the alleged harassment has occurred—duty to report (Farrager/Ellerth) and reasonable remedial measures by employer.
 See Kevin Feathery, In the Hopper Severe or Pervasive; Human Rights Cuts, Minn. Lawyer (May 2, 2018), https://minnlawyer.com/2018/05/02/in-the-hopper-severe-or-pervasive-human-rights-cuts/#respond (summarizing the state of the law, legislative efforts, and presentations by local attorneys).
 297 N.W.2d 241 (Minn. 1980).
 Act of March 23, 1982, ch. 619, sec. 2–3, 1982 Minn. Laws 1508, 1511 (amending then Minn. Stat. § 363.01; now codified at Minn. Stat. § 363A.03, subd. 43).
 Minn. Stat. § 363A.03, subd. 43(3) (2016).
 Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013).
 Kenneh v. Homeward Bound, Inc., No. 27-CV-17-931 (Minn. Dist. Ct.. Dec. 5, 2017) (Court order).
 832 N.W.2d 790, 797 (Minn. 2013).
 783 N.W.2d 197, 203 (Minn. Ct. App. 2010).
 733 N.W.2d 171, 176 (Minn. App. Ct. 2007).
 300 F.3d 928 (8th Cir. 2002).
 Kenneh, No. 27-CV-17-931, at 8–9 (citations and quotations omitted).
 Mary Mullen, Research Dep’t, Minnesota House of Representatives, House Research Bill Summary on File Number H.F. 4459 (April 23, 2018), http://www.house.leg.state.mn.us/hrd/bs/90/HF4459.pdf.
 Id. (emphasis added); see also HF 4459, 90th Leg., Reg. Sess. (April 23, 2018), https://www.revisor.mn.gov/bills/text.php?number=HF4459&version=latest&session=ls90&session_year=2018&session_number=0 .
 See Civil Law and Data Practices Policy Comm., Minnesota House of Representatives, Audio & Video Archives (April 26, 2018), http://www.house.leg.state.mn.us/cmte/archiveAV/cmtearchives.aspx?comm=90004&ls_year=90. (HF4459 available in a variety of formats)
See HF4459 Status, Minnesota House of Representatives, https://www.revisor.mn.gov/bills/bill.php?b=house&f=HF4459&ssn=0&y=2018 (last visited June 23, 2018).
 SF 4031 Status, Minnesota House of Representatives, https://www.revisor.mn.gov/bills/bill.php?f=SF4031&y=2018&ssn=0&b=senate (last visited June 23, 2018).
 Id.; see also Editorial Board, Minnesota Should Set a New Legal Bar for Sex Harassment Suits, Star Trib. (May 15, 2018), http://www.startribune.com/minnesota-should-set-a-new-legal-bar-for-sex-harassment-suits/482730971/ ) (noting that Senate Majority Leader Paul Gazelka indicated that “he’s responding to ‘a growing consensus that we should wait’ and study the matter between now and the 2019 session”).
 See Johnson v. Chicago, B. & Q. R. Co., 243 Minn. 58, 70, 66 N.W.2d 763, 770–71 (1954) (following prior decisions creates predictable standards of conduct for parties, promotes consistent legal principles, and contributes to the integrity of the judicial process).
 510 U.S. 17, 21 (1993).
 Id. at 24.
 Rasmussen, 832 N.W.2d at 797.
 See generally Jason M. Solomon, Juries, Social Norms, and Civil Justice, 65 Ala. L. Rev. 1125, 1129 (2014) (challenging the notion “that juries applying general standards are ideally suited to identify and apply social norms”).
 Rasmussen, 832 N.W.2d at 803 (Wright, J. concurring in part and dissenting in part).
 Id. at 802–10.
 State v. Provost, 490 N.W.2d 93 (Minn.1992).
 Rasmussen, 832 N.W.2d at 805–06 (Wright, J. concurring in part and dissenting in part) (recognizing the importance of considering the facts of each case individually, but also the competing need for guidance to workers, employers, legal practitioners, and judges by promoting predictability and uniform application of the MHRA’s protections throughout the State of Minnesota).