Dangerous New Sexual Harassment Definition Proposed in Minnesota

A bipartisan group of legislators has proposed an amendment to the definition of “sexual harassment” under the Minnesota Human Rights Act (“MHRA”).  The amendment would remove the requirement that sexually-oriented behavior must be “severe or pervasive” in order to be illegal, making it much easier to prove that sexual behavior at work violated the law.

The “severe or pervasive” standard for sexual harassment was established more than 30 years ago in the United States Supreme Court decision entitled Meritor Savings Bank v. Vinson. The standard was intended to insure that a prospective litigant is basing a legal claim on more than just isolated or relatively mild behavior.  Instead, there has to be proof that sexually charged behavior “altered the conditions of employment and created an abusive working environment.”

Not a General Civility Code

The “severe or pervasive” standard has been cited as method by which courts prevent anti-discrimination laws from imposing a “general civility code” on the workplace.  The standard is frequently the basis for dismissing dubious harassment claims based on relatively innocuous behavior (e.g. eye rolls, random looks and uncivil remarks) or behavior that occurs so infrequently as to not truly change the nature of the workplace.

Ultimately, persons claiming harassment must show that a reasonable person in their circumstances would find that the challenged behavior made the workplace hostile or abusive.  Without severity or pervasiveness as guideposts for their decisions, judges and juries will almost certainly expand their view of what sorts of behavior create an actionably offensive workplace.  In short, we could expect more claims and a lower threshold for proving those claims. That is good news for plaintiffs’ attorneys but an ominous sign for Minnesota employers.

Bottom Line

While the #MeToo movement has brought significant and welcomed attention to the need to take sexual harassment seriously, that cause will not be advanced by opening the floodgates of litigation for dubious claims or innocuous behavior.  Therefore, we will keep our eye on this very troubling new development.

Interestingly, the amendments would eliminate the “severe or pervasive” only for sexual harassment. Hostile work environment claims based on other protected statuses, such as race, disability or age would remain subject to the “severe or pervasive” standard in Minnesota.  Was this a value judgement that distinguished between different sorts of harassment or merely a trial balloon for possible amendments to come?