Unlike federal law, the state of Minnesota does not rely on caselaw, but defines sexual harassment by statute:

“Sexual harassment” includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when:

(1) submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment, public accommodations or public services, education, or housing;

(2) submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual’s employment, public accommodations or public services, education, or housing; or

(3) that conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment.

However, Minnesota courts have followed federal case law in stating that discriminatory conduct “is not actionable unless it is so severe or pervasive as to alter the conditions of the plaintiff’s employment and create an abusive working environment.”  This standard was recently addressed by the Minnesota Supreme Court.

In the case of Kenneh vs. Homeward Bound, Inc., after transitioning to a new position with her employer in February, 2016, the plaintiff began receiving compliments from the employer’s maintenance coordinator on a regular basis.  As often happens, the compliments started off innocent enough, but the maintenance coordinator’s behavior deteriorated into references to oral sex and following the plaintiff, Kenneh, to off-site locations.  This led to the plaintiff filing a complaint against the maintenance coordinator that was investigated, but unfortunately was inconclusive.

Despite being warned about his behavior, the maintenance coordinator only escalated his behavior, stopping by the Kenneh’s office more frequently and blocking her exit with his body.  Kenneh complained to her supervisor twice more, and began showing up late to work.  When asked about why she was late, she explained she did not want to interact with the maintenance coordinator, and asked if she could return to a flexible schedule.  Homeward Bound allegedly then denied her request for a transfer and fired her.  Kenneh sued for sexual harassment under the Minnesota Human Rights Act, stating that the maintenance coordinator’s conduct created a hostile work environment.

Citing the high standard of state’s requirements for actionable sexual harassment, the district court granted Homeward Bound’s motion for summary judgment and the court of appeals affirmed.  Both courts found that Kenneh did not experience “severe or pervasive” sexual harassment.  The Supreme Court somewhat surprisingly accepted the case for review to answer the question of whether the “severe or pervasive” standard should be abandoned.

In declining to abandon the standard, the Court held that the standard “reflects a common-sense understanding that…sexual harassment must be more than minor.”  The Court then clarified how the standard applies to claims arising under the MHRA.

The Court emphasized that the standard has and must “evolve to reflect changes in societal attitudes towards what is acceptable behavior in the workplace.”  An actionable claim can arise from one severe incident or a series of non-actionable events combined to create an “objectively hostile environment when considered as a whole.”  The Court stated it was not turning the MHRA into a civility code, but cautioned “courts against usurping the role of a jury when evaluating a claim on summary judgment.”

With that in mind, instead of reversing 30 years of precedent behind the “severe or pervasive” standard, the Court addressed the behavior of the maintenance coordinator in the case, and determined that because of the frequency of the actions by the maintenance coordinator in the five months Kenneh worked with him, that Kenneh had provided enough evidence to survive a summary judgment motion.

The “severe or pervasive” standard has been the subject of much consternation in both the courts and the legislature, with new laws proposed to abandon the standard in statute.  It appears that, with this decision, while the Minnesota Supreme Court has not abandoned the standard, there is a clear warning that courts should not liberally grant summary judgment motions against plaintiffs and should allow claims to make it to juries.  This means that employers need to be especially careful when confronted with sexual harassment claims in the workplace.

If you, or your organization need assistance in responding to sexual harassment claims, or training your employees on how to conduct themselves appropriately in the workplace, contact the Wiley Law Office, for legal experience that works.