Sexual harassment is a significant problem in our society. Among women, 85 percent report that they have been sexually harassed at work, according to a 2016 report by the Equal Employment Opportunity Commission. The Minnesota Legislature has an opportunity to reduce sexual harassment by passing HF 4459/SF 4031.
Authored in the House by Majority Leader Joyce Peppin, R-Rogers, and co-authored by Minority Leader Melissa Hortman, DFL-Brooklyn Park, this bill is truly a bipartisan effort. The Senate companion has similar bipartisan support. When this language was amended to the House Public Safety Omnibus bill, it passed 121 to 4.
Unfortunately, misinformation from organizations that lobby on behalf of big businesses has resulted in some senators reevaluating their willingness to advance this bipartisan measure. Clarifying what is at stake and what these changes mean is critical in light of the Senate author’s apparent decision not to move this bill in 2018.
Make no mistake, sexual harassment is happening in our workplaces, schools and places of faith: the very institutions where we shape our identity and value of self. And we all play a role — as employers, employees and community members — to ensure fair, equal and respectful treatment of one another.
Look at the Rasmussen vs. Two Harbors Fish Co. case, the most recent sexual harassment case to come before the Minnesota Supreme Court (2013). In this case, an alleged male harasser made repeated inappropriate comments and advances toward three female employees who reported to him.
The alleged harasser told his female colleagues about his sexual preferences and sexual dreams. Despite being asked not to, he called them pet names like “Sweets.” He used explicit sexual language around them, told stories of a sexual nature regarding other employees, made sexual comments about female customers and joked about his and other men’s penis size. He showed them pornographic materials.
One female colleague received a phone call from the alleged harasser, who asked “How’s my little horny one?” He asked if she had single friends whom “she could hook him up with,” adding that he would be “willing to pay for it.”
In one instance, the alleged harasser removed wood chips from the chest area of his female colleague after she had been splitting wood. He remarked to his female colleague, in public, “Well it’s a perfect day to watch football and make love.”
It is no surprise that after one month of working in this environment, the female employee quit her job.
No Minnesotan should be subjected to the kind of hostile work environment described above. Yet the Minnesota Supreme Court sent the Rasmussen case back to the district court because the justices didn’t believe the conduct described satisfied the “severe or pervasive” standard for sexual harassment that has been applied under the Minnesota Human Rights Act. This disconnect between the current state of our law and what the majority of Minnesotans would consider to be unacceptable behavior is why this reform is needed now.
HF 4459/SF 4031 makes a targeted, common-sense change to deal with sexual harassment that creates a hostile environment, as in the Rasmussen case. The Minnesota Human Rights Act provides that sexual harassment occurs when “conduct or communication has the purpose or effect of substantially interfering with [her employment] or creat[es] an intimidating, hostile or offensive [work] environment.” Minn. Stat. §363A.03, Subd. 43(3). The bipartisan bill would stop Minnesota courts from requiring victims bringing cases to meet the “high threshold” of severe or pervasive in sexual harassment cases.
There is currently no “severe or pervasive” language within the definition of sexual harassment in the Minnesota Human Rights Act. Requiring sexual harassment victims to meet the severe or pervasive standard is inconsistent with what the Legislature intended when the Minnesota Human Rights Act was passed in 1982, and it is inconsistent with our values.
The “severe or pervasive” standard arises from Minnesota courts adopting language from rulings analyzing federal anti-discrimination law.
The expressed concern from the business community in opposition to this reform is over liability. Under current law, employers are liable if they knew or should have known of the hostile environment and failed to take “prompt remedial measures.” If an employer takes timely action to address sexual harassment, the employer faces no liability, no matter how egregious the conduct.
Employers that are taking steps to combat sexual harassment in the workplace do not need to be concerned with this bill. The defense of “prompt remedial measures” is not affected, and courts will continue to apply the defense.
The Legislature should better align legal standards with our shared values by adopting this reform. This bill is important enough that it should be voted on and sent to the governor for his signature as a stand-alone piece of legislation. Individuals who want to address sexual harassment, and not reward employers that are failing to take sexual harassment seriously, should call their state senator today to encourage them to pass HF 4459/SF 4031 now.
Kevin Lindsey is commissioner, Minnesota Department of Human Rights.