‘Severe or pervasive’ sexual harassment standard upheld in Minnesota
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Friday, June 5, 2020

‘Severe or pervasive’ sexual harassment standard upheld in Minnesota

By Thomas K. Lauletta, J.D. and Lisa Milam, J.D.

Numerous amici weighed in on both sides of the issue. Ultimately, the plaintiff failed to overturn the standard. But she may have met it here, so her suit was revived.

The Minnesota Supreme Court rejected an employee’s bid to overrule the "severe or pervasive" standard for establishing sexual harassment under the Minnesota Human Rights Act (MHRA). The standard, adopted from federal law interpreting Title VII, continues to provide a useful framework for analyzing a claim for sexual harassment under state law, the high court said. However, it added that trial courts should be wary of usurping the role of a jury by disposing of sexual harassment claims on summary judgment. And, it overruled the decision granting summary judgment against the employee, finding sufficient evidence in this case for a reasonable jury to decide that the conduct she alleged was sufficiently severe or pervasive (Kenneh v. Homeward Bound, Inc.June 3, 2020, McKeig, A.).

MHRA claim. This hostile work environment action was based on the conduct of a coworker who allegedly engaged in multiple incidents of sexual harassment from February to June 2016. The employee reported the incidents to her supervisor. The director of human resources informed her that an investigation was inconclusive, but that her coworker would receive additional sexual harassment training. Despite this, the harassment continued. Responding to her supervisor’s questions about her attendance, the employee asked if she could go on a flex-schedule in order to avoid contact with her harasser. The employer denied her request and terminated her.

The employee filed a hostile work environment suit under the MHRA. The lower court granted summary judgment in favor of the employer after concluding that she failed to allege conduct sufficiently severe or pervasive to support a claim. A state appeals court affirmed. Thereafter, she sought Minnesota Supreme Court review, asking the high court to abandon the severe-or-pervasive test for determining sexual harassment under the MHRA.

Severe or pervasive standard. The severe or pervasive standard was derived from federal case law evaluating sexual harassment under Title VII. Minnesota courts have applied the standard, but were not bound to follow specific federal decisions to interpret Minnesota law. In declining to abandon the test, though, the high court noted that it continues to provide a useful framework for analyzing the objective component of a claim for sexual harassment under the MHRA.

Summary judgment reversed. Applying the standard here, though, the court concluded that the district court erred in concluding that the employee failed to present sufficient evidence of severe or pervasive conduct sufficient to withstand summary judgment. She alleged at least five separate instances of harassment in less than four months, with ongoing interactions with the harasser between these incidents. She alleged her coworker made statements including "I will eat you. I eat women," and provocative gestures suggesting oral sex—the veracity of which was properly to be considered by a jury at trial, not a court at summary judgment.

Appellate court overstepped. The supreme court also overruled a determination by the court of appeals that the employee did not sufficiently show that her employer was aware of the ongoing harassment but failed to take appropriate action. In its review of the lower court’s decision, the court of appeals commented on her failure to recall certain dates at issue—suggesting that the appellate court may have based its decision in part on its own credibility determinations. This weighing of evidence and credibility on summary judgment would be error.

Employee guide not considered. Finally, the supreme court held that the lower courts did not err in failing to consider the effect of the operative employee guide, which apparently imposed a "zero-tolerance standard" regarding sexual harassment. Only statutory claims were asserted here, and the terms of the employer’s non-contractual employment guide do not alter the statutory definitions, nor impact the showing needed to establish a statutory claim under the MHRA. The lower court rulings on this issue were affirmed.

The case is No. A18-0174.

Attorneys: Kelly A. Jeanetta (Kelly A. Jeanetta Law Firm, LLC) for Assata Kenneh. Marko J. Mrkonich (Littler Mendelson) for Homeward Bound, Inc.

Companies: Homeward Bound, Inc.

Cases: StateLawClaims Discrimination SexualHarassment Procedure MinnesotaNews GCNNews

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