Strange Passions: A Raging Torrent of Mixed Emotions

The Minnesota Human Rights Act defines sexual harassment.

“Severe and pervasive” conduct is not included in the definition:

“Sexual harassment” includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when:

(1) submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment, public accommodations or public services, education, or housing;

(2) submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual’s employment, public accommodations or public services, education, or housing; or

(3) that conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment.

Minn. Stat. 363A.03, subd. 43.

Courts engrafted this “severe and pervasive” requirement onto a sexual harassment claims over 30 years ago. (See the Kenneh v. Homeward Bound Minnesota Court of Appeals decision at p. 8) (and see here (the seminal case) (and see here (a thorough recent article on the subject by Sheila Engelmeier, Heather Tabery, with assistance by Colin Thomsen)). Why? Because the statutory definition of “sexual harassment” is so vague and subjective that the courts felt compelled to constrict its application to balance the rights and interests between employers and employees.

Earlier this year, there were legislative efforts to remove the “severe and pervasive” requirement from plaintiff’s burden in a sexual harassment case. Those efforts failed. Now we will see whether Ms. Assata Kenneh and her lawyers have better luck before the Minnesota Supreme Court, which has granted her petition for review of her case against Homeward Bound, Inc. (petition, here, response, here).

Leave a Reply

Your email address will not be published. Required fields are marked *