Minnesota Courts Still Require Severe or Pervasive Conduct in Hostile Work Environment Claims

For more than 30 years, Minnesota courts have followed federal law in ruling that hostile work environment sexual harassment is actionable only if the behavior is sufficiently severe or pervasive to alter the claimant’s work environment.

Recently, the Minnesota Supreme Court was asked to revelauate this standard to determine if it needed to be modified or relaxed.

How It All Started

Assata Kenneh worked for Homeward Bound, Inc., an operator of residential care facilities for disabled people. When she transitioned to her new role as Program Resource Coordinator, she met and began interacting with Maintenance Coordinator Anthony Johnson. Kenneh alleged that Johnson almost immediately began engaging in various sexually oriented behaviors toward her, including:

• Complimenting her haircut and suggesting that he could come to her home and cut her hair;
• Telling Kenneh, as he stopped to help her with a stuck drawer, that he “likes it pretty all day and all night” and that he liked “beautiful women and beautiful legs.”
• After suggesting that Kenneh take some cake left over from a party the previous day, he stated “I will eat you—I eat women.”

Kenneh complained but the Human Resources Department’s investigation was deemed “inconclusive.”  Kenneh was informed, however, that Johnson would receive additional sexual harassment training and would be instructed not to be alone with her.

According to Kenneh, Johnson was undeterred and actually increased his interactions with her.  She alleged that he would stop by her office and block her door with his body while calling her pretty and sexy, and making suggestive gestures with his tongue.

Employee’s Internal Complaint Goes Nowhere

Johnson complained again but received little help.  She then asked to go back to her previous, flexible schedule that would minimize her contact with Johnson.  Homeward Bound declined the request and ended up terminating Kenneh after she arrived late to work and was unprepared for a meeting.  Kenneh then sued for sexual harassment under the Minnesota Human Rights Act (MHRA), among other claims.

The trial court dismissed the claim, noting that the behavior attributed to Johnson did not rise to the “high bar” of severe or pervasive conduct necessary to establish a hostile work environment.   While finding some of the behavior “boorish and obnoxious”, and other actions “objectively and subjectively unacceptable”, the judge concluded that Johnson’s overall pattern of conduct  just “does not constitute pervasive, hostile conduct that changes the terms of employment and exposes an employer to liability under the Minnesota Human Rights Act.”

The Minnesota Court of Appeals affirmed the dismissal, prompting Kenneh to take the case to Minnesota Supreme Court.

Legal Standard Stays the Same

Minnesota Courts have always followed Title VII (the federal anti-discrimination law) in evaluating hostile work environment claims, requiring proof of sexually oriented behavior that is so severe or pervasive as to alter the victim’s working conditions.  Still, Title VII and the MHRA are different statutes and the Minnesota courts have not hesitated to forge their own interpretive path when they felt that doing so was justified.

Kenneh’s appeal to the Minnesota Supreme Court was premised upon her plea that it was time for Minnesota to diverge from reliance on federal law and to impose a less restrictive standard of proof for a hostile work environment.  Kenneh argued that doing so would be consistent with the MHRA’s explicit directive that the law should be liberally construed.  Homeward Bound countered that the MHRA has been interpreted consistently for 30 years, and since other states tend to use this same standard, it is to everyone’s benefit that a consistent standard be applied from state-to-state.

The Minnesota Supreme Court sided with the employer that it was appropriate to retain  the “severe or pervasive” standard for Minnesota, reasoning that it “reflects a common-sense understanding that, to alter the conditions of employment and create an abusive working environment, sexual harassment must be more than minor.”  Under this standard, the work environment must be shown to be both objectively hostile (i.e. that a reasonable person would find it so) and subjectively hostile (meaning that the victim truly perceived it that way).

And Yet Decisions May be  Different

Notwithstanding the decision to retain the federal “severe or pervasive” standard, the Supreme Court instructed that conclusions drawn from federal cases over time will not necessarily dictate the same results now.  Instead, facts must be viewed through the lens of modern sensibilities and societal change, with an understanding that what people may have tolerated 30 years ago is no longer acceptable workplace behavior.

Against this backdrop, the court first looked at the frequency of the alleged conduct, noting that there were at least five separate incidents in four months, combined with almost constant references to Kenneh as pretty or sexy whenever he saw her. He was, as Kenneh described him, “somebody who[] talk[s] to me sexually each and every chance he gets, every time he sees me. And he’s talking to me, he’s putting his tongue out, up and down, up and down.”

As for severity, the court noted that Johnson propositioned her, used sexually provocative words and gestures, and could be viewed as having threatened her by virtue of his visits to the office when he blocked her doorway as he engaged in his sexually oriented behavior.

On the whole, the court concluded that Kenneh had presented sufficient evidence to persuade a reasonable jury on an objective basis that Johnson’s behavior was sufficiently severe or pervasive to substantially interfere with her employment or to create an intimidating, hostile, or offensive employment environment.

Bottom Line

Basically, the standard of proof remains the same but how it is applied will be different.  We will have to see how much of an actual change this means for determining the presence of an illegal hostile work environment.