In early June 2020, the Minnesota Supreme Court issued an opinion affirming the “the severe-or-pervasive standard” for analyzing a claim of sexual harassment under the Minnesota Human Rights Act, but also ruled in that case that the employee presented sufficient evidence for a reasonable jury to decide if the behavior was sufficiently severe or pervasive to constitute an intimidating, hostile, or offensive work environment. The case is Assata Kenneh v. Homeward Bound, Inc.

The employee complained of lewd comments and gestures, which continued after the employer’s investigation was deemed “inconclusive.” The trial court and court of appeals found that the conduct was not sufficiently severe and pervasive to constitute illegal sexual harassment, and dismissed the claim.

On appeal, the Supreme Court was asked to abandon the severe or pervasive standard, the precedent the courts, litigants, and employers have relied on for more than 30 years. In affirming the use of this standard, the Supreme Court held it is a useful framework for courts and juries to use. Nevertheless, each case is to be decided on the “totality of the circumstances,” and on “its own facts.” In some cases, “a single severe incident may support a claim for relief;” in others, “pervasive incidents, any of which may not be actionable when considered in isolation, may produce an objectively hostile environment when considered as a whole.” Also, the Court cautioned the lower courts that whether alleged harassment is severe or pervasive enough to create a hostile work environment is generally a question for a jury to decide.

The Supreme Court went on to conclude that the case should proceed to a jury as the employee presented sufficient evidence of severe or pervasive conduct to survive summary dismissal.

A key take-away from the Supreme Court’s ruling is that it may be more difficult for employers who are sued for sexual harassment to have the claims dismissed prior to trial. In addition, Minnesota’s highest court seems to be signaling that society is no longer tolerating workplace behavior that courts in the past have found inappropriate but not illegal. In fact, the court commented, “in a hostile work environment, no employee can thrive.”

Clearly, employers need to heed this warning. This case, and the ongoing discourse over racial bias, make it even more important for employers to:

• Continually train employees on appropriate behavior and how to report concerns
• Promptly and effectively investigate and respond to concerns of inappropriate behavior
• Review policies for bias and make sure they encourage employees to be treated in an equitable and respectful manner

The attorneys at Quinlivan & Hughes are excellent resources to address your employment law questions and issues that arise in your workplace. Even in a COVID-19 workplace world, harassment and discrimination issues arise. Call on our employment attorneys to help you investigate concerns, train employees, and examine and improve your policies and systems by calling Quinlivan & Hughes at 320-251-1414.