Will the #MeToo Movement Bring Legislative Change to Minnesota Employment Laws?

Brandon  T. Glanz By Brandon T. Glanz and Lehoan T. Pham Lehoan T. Pham

Despite a bipartisan push to significantly alter workplace sexual harassment law in Minnesota, the legislative session ended this week with no changes to the law.  At issue was the proposed rejection of the “severe or pervasive” standard that has prevailed for sexual harassment1 claims nationally and in Minnesota for more than 30 years.  Proponents of the bill contended that the legal standard is too onerous to prove an allegation of sexual harassment. Business groups, meanwhile, maintained that the proposal would have created a level of uncertainty for Minnesota employers.  What remains to be seen is whether, inspired by the #MeToo movement, the Minnesota Legislature revisits this issue during its next session.

The bill would have amended the Minnesota Human Rights Act (“MHRA”) and eased the burden of proof for an employee alleging sexual harassment in the workplace. Though, as drafted, the proposed change would not have provided a substitute standard and may have led to more questions than answers for employers.

The Minnesota Legislature never actually passed a law imposing the severe or pervasive standard.  Instead, Minnesota’s courts adopted that standard based on the U.S. Supreme Court’s 1986 decision rendered in Meritor Savings Bank v. Vinson.2  The standard’s core purpose was ensuring that an employee’s sexual harassment claim constituted more than “simple teasing, offhand comments, and isolated incidents[.]”3  As such, Meritor held that an employee’s claim “must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.”’4  

While not including the “severe or pervasive” language, the current version of the MHRA defines sexual harassment as conduct or communication that “has the purpose or effect of substantially interfering with an individual’s employment” or “creating an intimidating, hostile, or offensive” employment environment.5  In an attempt to break from the Meritor standard, the legislation unveiled by the House and Senate would have added a sentence to the MHRA to state that “[a]n intimidating, hostile, or offensive environment    . . . does not require the harassing conduct or communication to be severe or pervasive.”6

Critics of the bill contended that stripping away the “severe or pervasive” standard—without replacing it with a substitute standard—would have created confusion for Minnesota employers and unpredictability within the court system.  Indeed, during session, employers and other groups communicated to legislators a concern that the proposed change would create uncertainty for employers in drafting policies and monitoring workplace behaviors.  As a notable aside, the proposed change to the MHRA would only have eliminated the “severe or pervasive” standard for sexual harassment claims.  Hostile work environment claims based on other protected classes, however, such as race or age, would still have been subject to the Meritor standard.

If you have any questions regarding this content or other employment law trends, please contact the authors or one of the other attorneys in HKM’s Employment Law Group at (651) 227-9411.

1 According to the EEOC, “sexual harassment” may include: unwelcomed sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. https://www.eeoc.gov/laws/types/sexual_harassment.cfm (last visited May 15, 2018).
2 477 U.S. 57 (1986).
3Klein v. McGowan, 198 F.3d 705, 709 (8th Cir. 1999).
4Meritor, 477 U.S. at 67.
5 Minn. Stat. §363A.03, Subd. 43(3).
6See H.F. 4459 and S.F. 4031 (emphasis added).