This week, the Minnesota Supreme Court issued a unanimous decision affirming that the severe or pervasive standard remains the test for assessing claims of sexual harassment under the Minnesota Human Rights Act (MHRA). In doing so, the court rejected efforts by the plaintiff’s bar to modify the standard in an effort to make it easier to clear the summary judgment hurdle. The court also rejected the argument that the terms of an employer’s anti-harassment policy, promising to provide a workplace free from sexual harassment, modified the severe or pervasive standard.

The Underlying Action

Minnesota courts have long assessed MHRA sexual harassment claims by applying the severe or pervasive framework, which is the same standard used under federal law. Under this framework, conduct is not actionable unless it is sufficiently severe or pervasive to have altered the plaintiff’s employment and created an abusive working environment.

In Kenneh v. Homeward Bound, the plaintiff alleged sexual harassment by a nonsupervisory co-worker under the MHRA. The district court granted summary judgment to the employer,¹ concluding that the alleged conduct was not sufficiently severe or pervasive. The Minnesota Court of Appeals affirmed dismissal of the sexual harassment claim applying the severe or pervasive standard; it also concluded that the employer had established the affirmative defense of taking prompt and appropriate remedial action in response to the plaintiff’s complaint.

Against this backdrop, a vigorous debate was occurring in the Minnesota legislature over whether to amend the MHRA’s definition of sexual harassment to make such claims easier to prove. The Minnesota House of Representatives passed a bill that would have clarified that sexually offensive behavior need not be “severe or pervasive” in order for it to be actionable. The bill did not pass the Senate.

Shortly after the House bill failed, the Minnesota Supreme Court granted review in Kenneh. Six different amici participated in filing briefs in support of the plaintiff’s appeal, each asserting that Minnesota should change or discontinue its longstanding use of the severe or pervasive standard.

The Minnesota Supreme Court’s Ruling

The Minnesota Supreme Court unanimously reaffirmed that the severe or pervasive analysis is the proper standard to use in evaluating sexual harassment claims under the MHRA. This is a significant victory for employers. Kenneh preserves this well-established standard and allows employers greater predictability under the MHRA. Kenneh made clear that any attempt to change the MHRA’s sexual harassment definition will have to go through the legislature.

The court handed employers another victory when it rejected the plaintiff’s argument that the employer’s zero-tolerance sexual harassment policy lessened the standard under which her sexual harassment claim should be analyzed. The court also confirmed the availability of an affirmative defense for employers that implement an internal complaint procedure and take prompt and appropriate remedial action in response to a sexual harassment complaint.

In reaffirming use of the severe or pervasive framework, the Minnesota Supreme Court was careful to note that courts must evaluate cases individually based on the facts presented, not merely by referencing analogous federal cases. The court noted, “For the severe-or-pervasive standard to remain useful in Minnesota, the standard must evolve to reflect changes in societal attitudes towards what is acceptable behavior in the workplace.” At the same time, the court stated that its decision does not transform the MHRA into a general civility code, even if the determination of whether conduct is severe or pervasive will often be a jury issue.

Ultimately, the Minnesota Supreme Court reversed and remanded Kenneh, holding that issues of fact existed regarding the alleged harassment that a jury needed to decide. The court also held that that the lower court improperly made credibility assessments applicable to Homeward Bound’s affirmative defense.

Key Takeaways for Employers

Kenneh provides timely reminders regarding an employer’s obligation to protect against workplace harassment:

• Make sure your sexual harassment policies are up-to-date by performing periodic reviews of the policy;
• Make sure your policy is readily available to employees;
• Train managers and human resources staff what to do if inappropriate conduct arises in the workplace and how to deal with employee reports of such conduct; and
• Focus on fact patterns in recent case law in any motion for summary judgment, should the employer have need to defend such a claim.