• November 15, 2019

Update (November 15, 2019): The case described below was argued before the Minnesota Supreme Court this week. In the underlying district court decision by retired Hennepin County District Court Judge Mel I. Dickstein, it seems clear that Judge Dickstein felt required to rule against the plaintiff by established law and strongly suggested the possibility that that the courts consider “articulat[ing] a different standard.” (Here at p. 11.)

It seems that some on the Court might think that the issue in the case is for the legislature to address rather than for the courts. This is somewhat ironic because the courts, and not the legislature, engrafted a “severe or pervasive” element onto a viable claim for sexual harassment.

There was much discussion as to whether the “severe or pervasive” is “an element” or “a standard.” It seems the point is whether the fact-finder must find the behavior is “severe or pervasive” or not. Would it be error for a trial court not to instruct the jury that the conduct has to have been “severe or pervasive,” Justice Lillehaug pressed defense counsel? The Court seems unclear or undecided on this important point.

Original post (June 10, 2019): The Minnesota Human Rights Act defines sexual harassment.

“Severe or 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 or 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 or 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).

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