The Minnesota Supreme Court has weighed in on whether claims of sexual harassment under state law should continue to be analyzed under the “severe or pervasive” standard of review developed by federal courts ruling on sexual harassment claims under Title VII of the 1964 Civil Rights Act. The state’s highest tribunal ultimately declined to reject the severe-or-pervasive standard, but it admonished lower courts in Minnesota on the over-use of summary judgment to dismiss these cases and held that the standard must be applied to reflect current societal attitudes towards what is acceptable behavior in the workplace. The likely result of this ruling is that it will be more difficult for employers to have sexual harassment cases in Minnesota dismissed before trial.
The Facts in Kenneh v. Homeward Bound, Inc.
Kenneh v. Homeward Bound, Inc., No. A18-074 (Minn. June 3, 2020) involved a Program Resource Coordinator, Kenneh, who worked for a residential care facility, Homeward Bound. Kenneh alleged that, shortly after she started in the position, another Homeward Bound employee, Johnson, who worked in maintenance, complimented Kenneh on her hair and offered to give her a haircut at his home or her home. In the next encounter she claimed that he went to her desk to help her with a desk drawer, said he likes “beautiful women and beautiful legs,” and licked his lips. On yet another occasion Kenneh alleges that Johnson, in a discussion about a birthday cake, licked his lips and said, “I will eat you – I eat women.” She also said he followed her in his car to a gas station without getting gas himself.
Kenneh complained to her supervisor and filed a formal complaint. Homeward Bound’s Human Resources personnel placed Johnson on paid leave and performed an investigation. The investigation was deemed to be inconclusive, but Johnson was required to receive sexual harassment training and instructed not to be alone with Kenneh.
Johnson persisted in visiting Kenneh’s office on repeated instances, however, and allegedly simulated oral sex and called her “sexy,” “pretty” and “beautiful.” Kenneh complained two more times to no avail. On June 1, 2016, Kenneh was late for work and unprepared for a meeting. When her supervisor spoke to her about her attendance issues, Kenneh said she did not want to come to work because of Johnson. Homeward Bound eventually terminated Kenneh’s employment.
The Severe or Pervasive Standard
In order to constitute sexual harassment in the workplace under Title VII, the U.S. Supreme Court has held that the conduct must be “so severe or pervasive as to alter the conditions of the plaintiff’s employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986). Minnesota has adopted the same test. Goins v. W. Grp., 635 N.W.2d 717, 725 (Minn. 2001). In theory, “severe or pervasive” means that one very egregious act could give rise to a legal claim, or a pattern of offensive but less severe behavior repeated over a course of time could as well. In practice, however, federal courts have affirmed dismissal of claims involving specific conduct that most people would find inappropriate, if not shocking. Judges in subsequent cases in which the alleged conduct was not as inappropriate have followed this heightened standard.
The District Court Lawsuit
Kenneh sued for sexual harassment and retaliation under the Minnesota Human Rights Act (“MHRA”) in Hennepin County District Court. The District Court judge found that the alleged conduct was “boorish and obnoxious” and that comments were “objectively and subjectively unacceptable.” Stressing the “high bar” that courts have set for sexual harassment claims, however, the district court “reluctantly” granted summary judgment for the employer and dismissed the case because the alleged conduct was not “pervasive, hostile conduct that changes the terms of employment and exposes an employer to liability under the Minnesota Human Rights Act.”
Kenneh appealed and the Court of Appeals affirmed dismissal. The Minnesota Supreme Court granted review on the question of whether Minnesota would continue to follow federal precedent when analyzing sexual harassment claims under the MHRA. Part of the background of this case is that certain advocacy groups in Minnesota had been lobbying for several years asking the Minnesota Legislature to amend the MHRA to provide for a lesser standard of review than “severe or pervasive.” This standard, they argued, as applied and interpreted by federal courts, had become too high of a bar for many plaintiffs who claimed to have been sexually harassed in the workplace. To date, the legislature has not taken action on this issue, perhaps in part due to a lack of consensus as to what standard of review would take its place. When the Supreme Court granted certiorari review in Kenneh, some of these groups saw the potential to change the law through the courts. Four groups filed amicus briefs in favor of changing the standard and two groups filed amicus briefs advocating for the status quo.
The Supreme Court began its analysis by noting that “[u]nlike federal law, Minnesota specifically defines sexual harassment by statute.” It also noted that Minnesota has often relied on federal law interpreting Title VII when interpreting the MHRA, but that reliance has not been absolute. It noted the need for predictability and consistency, invoking the canon of stare decisis. It therefore expressly declined to abandon the severe-or-pervasive standard. The Court did, however, state that it was taking the “opportunity” to “clarify how the severe-or-pervasive standard applies to claims arising under the MHRA.”
First, the Court pointed out that Minnesota’s adoption of the severe-or-pervasive framework does not mean that the conclusion drawn by any specific federal court is binding on the application of the state statute. (This comment was likely meant to address the practice of defendants pointing to certain specific federal cases with egregious facts in which the sexual harassment claim was dismissed and arguing that the allegations in their case were not nearly as bad and therefore it should be dismissed.) As it explained, “each case must be considered on its facts, not on a purportedly analogous federal decision.”
Second, the Court said that, in order for the standard of review to remain “useful” in Minnesota, it must “evolve to reflect changes in societal attitudes toward what is acceptable behavior in the workplace” and that the “essence” of the MHRA is “societal change.” Today, it noted, “reasonable people would likely not tolerate the type of workplace behavior that courts previously brushed aside as an ‘unsuccessful pursuit of a relationship’ or merely ‘boorish, chauvinistic and decidedly immature.'”
Third, the Court cautioned Minnesota trial court judges about the use of summary judgment in these types of cases, reiterating that “summary judgment is a blunt instrument” and that whether the alleged harassment was severe or pervasive is “generally a question of fact for the jury.” The Supreme Court reversed the Court of Appeals and remanded the matter back to district court.
The Supreme Court in Kenneh seemed to be looking for a middle ground. It did not necessarily clarify the law, but it did send a message. This decision will almost certainly mean that it will be more difficult for defendants in Minnesota to obtain dismissal of a sexual harassment case through summary judgment. This might lead to more cases being filed, more cases being filed in state court instead of federal court, and potentially an increase in settlement of these types of cases. Employers should therefore be more vigilant and careful than ever about preventing sexual harassment in the workplace. If you or company have questions about sexual harassment law in Minnesota, or if you have been sued for sexual harassment, contact the employment law attorneys at Trepanier MacGillis Battina P.A.
About the Author:
V. John Ella is a Minnesota employment law attorney with experience defending sexual harassment claims. He can be reached at 612.455.6237 or by e-mail at firstname.lastname@example.org. Trepanier MacGillis Battina is a Minnesota business and employment law firm located in Minneapolis, Minnesota.