Minnesota Supreme Court Clarifies the "Severe-or Pervasive" Standard Application to Minnesota Human Rights Act Claims

On June 3, 2020, the Minnesota Supreme Court released its long-awaited opinion in Kenneh v. Homeward Bound, a case that has been watched closely as having the potential to recraft the state’s approach to sexual harassment cases. In a unanimous decision, the Court reaffirmed its adherence to the longstanding severe-or-pervasive standard as applied to sexual harassment cases. However, the Court stressed that the standard needs to “evolve”, and ultimately reversed the dismissal of the underlying lawsuit. The Court held that that the evidence presented was, sufficient for a reasonable jury to decide that the alleged behavior was, “sufficiently severe or pervasive to substantially interfere with her employment or to create an intimidating, hostile, or offensive employment environment.” Thus, the Court has opened the door for a more relaxed interpretation of the standard going forward.

In Homeward Bound, the plaintiff claimed that a maintenance coordinator, Johnson, had spoken to her in a sexually suggestive and unwelcome manner on several occasions over the course of five (5) months. The conduct alleged by plaintiff included: inviting her to his home to cut her hair; saying he liked “beautiful women and beautiful legs”; speaking to her in a suggestive tone and licking his lips in a suggestive manner; blocking her path and office door (his relative body size to hers was considered); following her off the work site; simulating oral sex with his tongue whenever he looked at her; and, at least once, directly propositioning her for oral sex.

Homeward Bound’s investigation was inconclusive, but provided additional sexual harassment training to Johnson and instructed him not to be alone with the plaintiff. However, after the training, the plaintiff alleged Johnson increased the frequency and intensity of his inappropriate behavior. The plaintiff was late to work and unprepared for a meeting, claiming she did not want to come to work because of Johnson. Plaintiff then requested to be placed on a flex schedule so that she would no longer have to see Johnson. The request was denied and her employment was terminated.

The district court held, and the Minnesota Court of Appeals affirmed, that despite the fact that much of the behavior alleged by the plaintiff was undeniably highly objectionable, it could not meet the “high bar” for holding employers liable for an employee’s sexual harassment. In sum, both courts found the conduct was not “severe or pervasive” conduct that “changed the terms of employment.”

On appeal, the plaintiff asked the Minnesota Supreme Court to abandon its over thirty (30) year application of the “severe or pervasive” standard, developed under federal law (Title VII), for Minnesota Human Rights Act (“MHRA”) cases. The Court declined to overturn the “severe or pervasive” standard. However, importantly, the Court clarified that standard’s application to cases under the MHRA. The Court held that “the standard must evolve to reflect changes in societal attitudes towards what is acceptable behavior in the workplace.” The Court held that the allegations of misconduct identified by the plaintiff—including “at least five separate incidents in less than 4 months, with ongoing interactions between these events”—and the severity of the alleged conduct were enough that a jury could reasonably decide that “severe or pervasive” harassment had occurred in violation of the MHRA. Accordingly, the Court reversed the grant of summary judgment in favor of Homeward Bound, and remanded the case to the trial court.

Although the Kenneh decision leaves the “severe or pervasive” standard in place, the Court’s acknowledgement of the evolving standards for appropriate workplace conduct is likely to lead to an increase in sexual harassment claims, and make it harder for employers to get summary judgment (leaving the decision to a jury). As always, it is important that employers ensure their anti-harassment policies are enforced and up-to-date (though the Court made it clear that a policy does not alter employee rights under the MHRA), harassment training is regularly provided to employees and supervisors, and claims of harassment or discrimination are promptly and thoroughly investigated – without retaliation therefor.

If you have questions regarding sexual harassment claims in Minnesota after Kenneh or anything else related to preventing or addressing discrimination or harassment in the workplace, please contact William Parker at (952)921-4602 or wparker@prkalaw.com, or any other attorney at Peters, Revnew, Kappenman & Anderson, P.A.

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