In the June 3, 2020 decision of Kenneh v. Homeward Bound, Inc., the Minnesota Supreme Court declined to abandon the severe or pervasive standard for sexual harassment claims arising under the Minnesota Human Rights Act (“MHRA”).  By U.S. Supreme Court caselaw under Title VII, a hostile work environment sexual harassment claim requires a plaintiff to prove that a “harasser’s” conduct is sufficiently “severe or pervasive” such that a reasonable person would find the conduct to be objectively hostile or abusive to create a hostile or abusive working environment.  Minnesota courts have relied on this standard when deciding cases of hostile environment sexual harassment under the MHRA.

In the Kenneh case, however, the plaintiff and a large number of advocacy organizations filed “friend of the court” briefs arguing that the Minnesota Supreme Court should abandon the “severe or pervasive” standard for sexual harassment claims.  They argued that the Minnesota Supreme Court has read the severe or pervasive language into the MHRA based on the U.S. Supreme Court rulings in federal cases; the Minnesota statute does not include that standard.  In its ruling, the Minnesota Supreme Court declined to abandon the standard, since the Court is bound by precedent and the task of extending or eliminating existing law falls to the legislature.  In fact, the Minnesota Legislature has previously attempted to either clarify or eliminate the standard in at least the last two legislative sessions.

For the “severe or pervasive” standard to remain useful in Minnesota, the Kenneh Court found the standard must “evolve” to reflect changes in societal attitudes towards what is acceptable behavior in the workplace.  In particular, the Court held that to decide whether conduct is severe or pervasive, courts and juries – the fact finders – must consider the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interfered with an employee’s work performance.  It further found that if a reasonable person could find the alleged behavior objectively abusive or offensive, a claim was sufficiently severe or pervasive to survive summary judgment.

The Minnesota Legislature and the Definition of Sexual Harassment

In the 2019 session, the House overwhelmingly passed a bill which would explicitly remove the “severe or pervasive” requirement read into the law by the Minnesota Supreme Court.  The Senate, however, then introduced a completely opposite bill which would codify and preserve the standard.  To prove a sexual harassment claim, among other things, the conduct or communication must be shown to be sufficiently severe or pervasive so as to alter the terms or conditions of an individual’s employment.  The Senate bill would have provided clarity and the codification would have been consistent with existing law under both Title VII and the MHRA.  During the 2020 session, it is likely the legislature did not have time to address the issue because it had to deal with a myriad of other problems in connection with the COVID-19 crisis.

What to Expect

The 2020 November election may bring some surprises in the 2021 legislative session.  It was noteworthy that 14 separate law firms filed “friend of the court” briefs in Kenneh, arguing for one side or the other about the “severe or pervasive” standard, so there is strong interest abounding and we will all have to stay tuned for that.