Last week, Minnesota legislators introduced a bill to amend the definition of sexual harassment under state law. Indeed, this legislation has already received significant attention in the media throughout Minnesota. And although the bill adds only a single sentence to existing law, it has the potential to significantly reshape the legal landscape for employees who bring sexual harassment claims against their employers. The substantive text of the amendment reads as follows:
An intimidating, hostile, or offensive environment … does not require the harassing conduct or communication to be severe or pervasive.
To unpack what this means, it’s necessary to first review some general principles of the law concerning sexual harassment. Sexual harassment is a prohibited form of sex discrimination under state and federal employment non-discrimination law. For a time, courts struggled to precisely define prohibited harassment. In 1986, the Supreme Court, interpreting federal law, held that “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Generally, state law in Minnesota has followed this interpretation.
The severe or pervasive standard is an attempt by courts to reconcile issues of degree (i.e., severity) and frequency (i.e., pervasiveness) into what constitutes unlawful sexual harassment in the workplace. The standard recognizes that some acts of alleged harassment are so severe that the conduct may be actionable even if it occurred only once. For example, a single instance of unwanted, inappropriate physical contact from a coworker might be sufficiently severe to be actionable, depending on the facts.
Simultaneously, the standard acknowledges that severity is not the only way by which illegal sexual harassment can occur. Hence, the standard recognizes that some acts of alleged harassment, which may not seem as severe, can occur with such frequency as to create a hostile working environment. For example, workplace remarks that might be considered only mildly inappropriate may, if made regularly or with a high frequency, constitute sexual harassment. Note: the complained of conduct must only be severe or pervasive to be actionable; it is not necessary to be both severe and pervasive, although some complaints of sexual harassment may meet both standards.
Critics of the severe or pervasive standard, who presumably include the bill’s sponsors, have argued it discourages employees from making legitimate reports and/or claims of sexual harassment by setting the bar too high. In removing the severe or pervasive standard, the Minnesota bill therefore redefines illegal sexual harassment in employment as “conduct or communication has the purpose or effect of substantially interfering with an individual’s employment . . . or creating an intimidating, hostile, or offensive employment . . . environment.” What, exactly, meets this standard would be determined by Minnesota courts.
Critics of the bill have argued that removing the severe or pervasive standard removes important guideposts for courts evaluating sexual harassment claims. In their view, this bill risks creating a flood of new lawsuits, broad exposure for employers without large, sophisticated Human Resources departments, and potential inconsistencies in how the law of sexual harassment is applied.
Employers should keep an eye on this legislation as it proceeds through the legislative process. If passed in its current form, the bill would apply to causes of action arising on or after August 1, 2018. Employers can track the status of this legislation at the Minnesota Legislature’s website.