Lawmakers again propose removing barriers to harassment cases

Demonstrators outside the state Capitol at a women's march.
Supporters say eliminating what's called the "severe or pervasive" legal standard for sexual harassment cases will guarantee more victims have their day in court. Here, demonstrators outside the state Capitol at the 2017 women's march.
Evan Frost | MPR News 2017

In 2012, Ami was serving tables at Perkins to help put herself through law school when she noticed two men coming in more frequently, always asking to sit in her section.

It didn't take long before one of the men made an admission: He had a crush on her, even though he knew she had a boyfriend. But he kept coming in. One late night after her shift, he waited for her in the parking lot, jumping out of his truck and yelling her name. Several other servers rushed out to help her.

Ami reported the incident to her boss, asking to no longer serve the two men, but she said management didn't listen, and even started jokingly referring to them as her "stalkers." The behavior escalated: the men started touching her hands, trying to hug her as they left and looked for her car and waited for her in the parking lot. It went on for more than a year.

"The manager refused to give me my tips from that day or let me clock out until I said goodbye to the men," said Ami, who didn't want her last name used because of fear of her stalkers and retaliation. "The manager waited at the front and watched me say goodbye to the stalkers."

She got an order of protection against the men, but they were still allowed in the restaurant, so Ami hired a lawyer and filed a sexual harassment lawsuit in court. But her case never made it far, bumping up against a decades old legal standard that requires harassment to be "severe or pervasive" to be actionable in court. The standard is so high that most cases end before they even begin.

"The courts have said it has to be hellish," said Sheila Engelmeier, an attorney who has worked on these cases for decades.

A bill moving in the Minnesota House would essentially eliminate that legal standard by adding a line to the state's Human Rights Act that "an intimidating, hostile, or offensive environment...does not require the harassing conduct or communication to be severe or pervasive." This would provide a signal to Minnesota judges, Engelmeier said, that they have more flexibility to hear cases.

The House Judiciary Committee approved the bill Thursday by a unanimous vote, and it is now heading to the House floor.

In all workplaces, if an employee is harassed and feels their employer doesn't respond appropriately, they can bring a claim to court through the state's Human Rights Act or the federal Equal Employment Opportunity Commission.

But a 1986 ruling from the United States Supreme Court established that the behavior must be so "severe or pervasive" that it affects the conditions of the victim's employment and creates a hostile working environment. Federal judges applied that standard narrowly, so that many victims never had their day in court.

That includes cases where employees had their breasts and crotch grabbed, where they were propositioned for oral sex and even a case where someone looked through a peephole on an employee in a bathroom more than a dozen times, Engelmeier said.

Some Minnesota judges have been asking for clarification on the standard, including in a 2017 case where a woman said her coworker repeatedly called her "beautiful" and "sexy" and one day told her he would "eat her" because he likes to "eat women." She said she faced retaliation for reporting the harassment.

Hennepin County District Court Judge Mel Dickstein said the behavior was unacceptable, but he couldn't take up the case because of the "severe or pervasive" standard.

In his ruling he said workplace standards had changed since the 1980s."Times change, and with them so too do the standards of conduct," he wrote.

In Ami's case, retired Judge Mary Pawlenty, Minnesota's former first lady, said the employer "should take no solace in prevailing on summary judgment in this case, nor interpret this decision as condoning management's disinterest in taking simple, reasonable steps to deal with the troubling customers," Pawlenty wrote. "[She] deserved better from her employer."

House Republicans, in the majority last year, led on eliminating the language, and the proposal passed in the House by a vote of 121-4. With Democrats now in the majority, the bill is being carried by Rep. Kelly Moller, DFL-Shoreview, who noted the proposal had bipartisan support last session.

But the change also has plenty of opponents, including members of the business and employment law community, who argued the simple addition to state law would have massive unintended consequences.

"We're not here to say the sky is falling, we're here to say we have tremendous concerns about the language that is being proposed because it will increase the amount of litigation. There is just no question about that," Melissa Raphan, with the Minnesota Employment Law Council, said testifying against the bill.

Raphan and some others were concerned about language that said no action or "communication" has to be severe or pervasive to be actionable. "Making every word actionable is the concern we have," she added.

The proposal was introduced last year at the height of the #MeToo movement, which encourages women and men to share their stories of sexual harassment and assault.

Two legislators — DFL Sen. Dan Schoen and Republican Rep. Tony Cornish — were accused of harassment and resigned in December 2017. Republican Rep. Rod Hamilton was also accused of harassment during the 2018 session, but an internal investigation into the allegations was inconclusive.

The bill was introduced late last year and never made it to the Senate floor for a vote. Back then, Senate Majority Leader Paul Gazelka said lawmakers needed more time to discuss the proposal. This week he said more groups have come forward with concerns about changing the standard.

"It's nonprofits, it's government, it's business all saying be careful what you do and how you do it," he said. "I still think the bill that was put forward last year by the House and put forward this year by the House is not where we want to be, but the fact that we need to make sure our laws work related to sexual harassment, that part I'm open to."

Every Republican on the House judiciary committee ultimately voted for the bill, but some said they want to continue to discuss the proposal's language as it moves forward.

"I have a daughter who I don't want to be sexually harassed, but I also have a son and a husband who I don't want to be falsely accused," Rep. Peggy Scott, R-Andover, said Thursday. "This is serious business we are discussing here."

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