Proposed Legislation to Lower the Standard to Prove Sexual Harassment

Minnesota is on the verge of changing the definition of sexual harassment in a way that will lead to more stringent legal responsibility and affect what action the business community needs to take to prevent it from occurring in the workplace.

On February 7, 2019 the Minnesota House of representative's judiciary committee, in a 16-0 vote, sent a bill to the floor that would lower the standard used to prove sexual harassment under the Minnesota Human Rights Act (MHRA). But does legislation deleting reference to an already long established standard to prove sexual harassment simply punt the question of how to determine future liability to the courts?

Currently, the MHRA requires the same standard of proof for sexual harassment as it does for any other type of harassment based on a protected class, such as that based on race or religion. In general, harassment based on a protected class becomes unlawful when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. In applying this standard, courts also look at whether the harassment has changed the employee's working conditions.

Generally speaking, "severe harassment" can occur through a single act if it involves a particularly offensive comment or some sort of physical touching. "Pervasive harassment" involves incidents of less serious conduct that occurs frequently over a period of time. Simply put, the courts created the severe or pervasive standard in an attempt to differentiate poor workplace behavior from unlawful harassment due to a recognition that just because an employee's conduct might lead to discipline, does not mean it should necessarily lead to litigation.

The bill that the judiciary committee sent to the floor would lower the standard solely for sexual harassment by deleting the severe or pervasive standard. Specifically, the legislation proposes to add a line to the definition of sexual harassment in the MHRA that states "an intimidating, hostile, or offensive environment . . . does not require the harassing conduct or communication to be severe or pervasive."

The proposed language not only infers that other forms of harassment are less deserving of prevention in the workplace (by leaving them subject to a higher standard of proof), it also fails to provide a viable replacement standard. Consequently, the question of what should be the standard will be passed onto the courts to determine through what will most certainly be increased complex and, at times, potentially confusing litigation. For example, a lawsuit brought by a single employee alleging she was subjected to sexual harassment and racial harassment by the same person, at the same time, and in the same workplace, would require the court to apply the existing severe or pervasive standard to the race harassment claim while being left to apply a different standard for the sexual harassment claim.

Another primary concern regarding the absence of a reasonable replacement standard is the possibility that the courts may decide that the new law requires a pristine work environment. This would operate as strict liability by holding employers liable for even the smallest of stray remarks or employee disputes that have no impact on the employee's work environment, even in circumstances where the employer was unaware of the situation and had no ability to prevent it. Given that it would be nearly impossible for employers to prevent every stray comment, such a standard would leave the business community with continued uncertainty over the regulation of its workforce.

Preventing sexual harassment or any other type of unlawful harassment from polluting the workplace is something we can all agree on. The manner in which that is accomplished, however, should be viewed carefully with an eye toward achieving reasonable certainty for all involved.

If you have questions or concerns regarding unlawful workplace harassment, or any other employment law issues, please contact attorney Chad A. Staul at [email protected].

Established more than 90 years ago, Quinlivan & Hughes ranks among the oldest and largest law practices in Central Minnesota. The firm's legal teams are known as leaders in both their industries and the community.

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