The Minnesota legislature has once again taken up proposed legislation that would add language to the Minnesota Human Rights Act (MHRA) eliminating the U.S. Supreme Court’s standard for actionable sexual harassment, which requires it to be “severe or pervasive.” House File No. 10 and its companion Senate File No. 1307 propose adding the following sentence to Minn. Stat. § 363A.03 subdiv. 43, “An intimidating, hostile, or offensive environment . . . does not require the harassing conduct or communication to be severe or pervasive.”
The MHRA establishes important standards for Minnesota workplaces that protect employees’ civil rights. The trend towards a heightened awareness of inappropriate sexual behavior is improving the workplace and there is more training, policy implementation, and other work that can be done. Advocates of a different standard for evaluating whether offensive conduct is actionable as sexual harassment point to several cases where courts have summarily denied claims notwithstanding facts that many of us would consider extreme.
On the other hand, there are also types of behavior that, while certainly inappropriate and condemnable, might not warrant a lawsuit, such as tactless jokes, off-color remarks, and ignorant stereotypes. Isolated instances of these types of conduct may be worthy of counseling, reprimand, reassignment, and even termination long before they reach the level of actionable sexual harassment. Courts are tasked within drawing these difficult lines every day and there is a developed body of case law interpreting and applying the “severe or pervasive” standard to that end.
Regardless of how courts are applying the standard, the proposed legislation would not provide an acceptable solution because it eliminates the standard without replacing it with a different one. The resulting lack of clarity will guarantee only one thing: a flood of expensive litigation and a judiciary who is in a worse position to sort out the meritorious claims. The proposed legislation will also fail to measurably improve workplace civility, with courts and employers likely to continue their existing practices in the absence of alternative legal guidance.
Simply eliminating the current standard and then expecting the enterprising and aggressive plaintiffs bar to police the workplace is an expensive and inefficient path to social change. The better solution is more thoughtful and carefully drafted legislation. The legal universe is full of different standards and safeguards that could be codified. Before Minnesota embarks on a journey to change the standard for sexual harassment, the legislature should first define the destination, and the proposed legislation fails to do that.
Minnesota would be the first state in the country to adopt legislation like House File No. 10 and Senate File No. 1307. The same proposal failed in the Minnesota legislature last year. This year, the House Judiciary Committee unanimously approved House File No. 10 in early February, sending it to an upcoming vote on the House floor. Senate File No. 1307 has been referred to the Senate Judiciary Committee, with its first deadline on March 15th. The committees should keep working on this legislation, because it is still not ready for serious debate.