2018 Legislature: Why the sex harassment fix must move forward

The last two weeks had been encouraging to Minnesotans who want to banish sexual harassment from our workplaces. On April 23, House Majority Leader Joyce Peppin, R-Rogers, introduced a bill clarifying that the definition of an "intimidating, hostile or offensive working environment" under the Minnesota Human Rights Act "does not require the harassing conduct or communication to be severe or pervasive."

Identical bills were introduced by Minority Leader Melissa Hortman, DFL-Brooklyn Park, in the House and Sen. Karin Housley, R-St. Mary's Point, in the Senate. The full House voted to approve the measure this week.

But now, swift progress has been blocked. Housley said Wednesday that the Senate is unlikely to vote on the change after hearing objections from business leaders and others.

The Legislature should not shelve this effort to revive the original meaning of our state's sexual harassment law. Minnesota has historically been a leader in equal opportunity. This clarification of the law will restore protections the Legislature put in place over 30 years ago.

To understand why this step is necessary, and why it brings the interpretation of our state law back to its original intent, we need a brief look at the history of sexual harassment litigation in this state.

In 1980, six years before the U.S. Supreme Court recognized that sexual harassment was a form of sex discrimination, the Minnesota Supreme Court held that a hostile work environment violated the Minnesota Human Rights Act. An African-American woman sued Continental Can in Eagan after being forced from her job by sexually derogatory remarks and verbal sexual advances from co-workers and frequent pats "on the posterior" that culminated in being grabbed "between the legs."

Despite Continental Can's protestations that it was not responsible for the rowdy behavior of its male workers, the court found that such unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constituted sexual harassment.

But when the U.S. Supreme Court finally held in 1986 that sexual harassment was illegal, it did not use the language from the Minnesota statute. Instead, it held the conduct had to be "sufficiently severe or pervasive to alter the conditions of [the employee's] employment and create an abusive working environment."

Even though the U.S. high court was interpreting Title VII, a federal law, state courts began following the federal "severe or pervasive" standard in determining what constitutes harassment under our state law.

Over the last 30 years, the effect has been a continuously narrowing path to the courts for women confronting sexual harassment, with results that take us far from the groundbreaking Minnesota Supreme Court decision in Continental Can. Under federal law, harassment must be so severe or pervasive that "the workplace is permeated with discriminatory intimidation, ridicule, and insult."

Really? Must things be that bad to substantially interfere with a woman's work? One case recently rejected by the Minnesota court seems eerily familiar to Continental Can. The owner grabbed and kissed and attempted to kiss an employee, touched her on the hair, legs and buttocks, asked her to have sex and run away with him, commented on her breasts and her "pleasuring herself." Based on federal precedent, the Minnesota court found that this behavior was not severe or pervasive enough to allow the woman a jury trial.

The business community and other influential groups have said that the amendment of the statute will leave the judges in this state without guidance. Not so. The words of the state statue are clear; Continental Can is clear. Judges will still look at the objective facts and the totality of the circumstances in determining whether the standards are met. But elected state court judges will no longer have their hands tied by cases from federal jurisdictions all over the country in determining the application of this state's groundbreaking law.