On May 30, 2008, the Minnesota Supreme Court adopted the federal liability standard for sexual harassment committed by a supervisor in cases under the Minnesota Human Rights Act (“MHRA”).  Frieler v. Carlson Marketing Group, Inc., Case No. A06-1693 (Minn., May 30, 2008).

Before 2001, under the MHRA an employer could be liable for sexual harassment if it “knew or should have known about the harassment” and failed to take timely and appropriate action.  The 2001 Legislature deleted this language, but no standard replaced it.  In Frieler, the Minnesota Supreme Court rejected the plaintiff’s argument that in amending the statutory definition of sexual harassment the legislature intended for employers to be strictly liable for all sexual harassment, and instead concluded that the clear intent of the 2001 amendment was to make Minnesota law on sexual harassment by supervisors consistent with federal law. 

Under this newer standard an employer may be liable for a hostile environment created by a supervisor who has authority over a victimized employee.  In circumstances when no “tangible” employment action is taken against the employee, the employer may raise an affirmative defense to liability or damages if it proves by a preponderance of the evidence: (1) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) that the employee unreasonably failed to take advantage of the employer’s policies. An employer does not enjoy this defense when the supervisor’s harassment “culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.”

The Minnesota Supreme Court also addressed the issue of who is a supervisor for purposes of looking at employer liability for sexual harassment.  The Court chose to adopt the EEOC’s relatively broad definition so that an individual qualifies as an employee’s supervisor if he or she has authority to undertake or recommend tangible employment decisions affecting the employee or the individual has authority to direct the employee’s daily work activities.

Although Frieler deviates from the prior law on sexual harassment, the decision helps clarify the 2001 amendment to the MHRA.  Also, Frieler only impacts cases in which the alleged sexual harassment is by a supervisor.

Further, in Frieler, there was a question of how extensive the employer’s antidiscrimination and harassment policy was, whether all the employees knew of the policy, how the policy was disseminated to employees, whether all employees received training about the topic, and the extent to which employees received updated training.  The Minnesota Supreme Court’s decision provides a good opportunity for employers to revisit and possibly revise their antidiscrimination and harassment policies as necessary so that they can use the available defenses in the event of a sexual harassment claim based on conduct by a supervisor.  This also provides a good opportunity to ensure that employees and supervisors know about the employer’s antidiscrimination and harassment policy and receive training on the policy.  Contact any of Felhaber’s Labor and Employment attorneys for assistance with policies or training.