A bipartisan push at the Capitol to broaden the definition of sexual harassment in state law is stalled amid opposition from the business community and other influential groups.
The full House this week voted in favor of the change, which eliminates a requirement that someone’s words or actions must be “severe or pervasive” in order to constitute sexual harassment. But the bill’s Senate sponsor, Republican Sen. Karin Housley, said Wednesday that the Senate is unlikely to go along with the law change this year.
Business leaders, local governments and education groups have all raised concerns about the measure, said Housley, R-St. Mary’s Point.
“We want to be very, very thoughtful about how we go about it, and make sure there’s not any unintended consequences,” said Housley, also a Republican candidate for U.S. Senate in the special election to fill the rest of Al Franken’s term. “It’s still sitting in committee and I’m guessing that’s where it’s going to be until next session when we can really give it its proper due process.”
The proposal has support from both Republicans and DFLers in the Legislature. In the House, it’s sponsored by House Majority Leader Joyce Peppin, R-Rogers. But in a recent letter to Peppin, various business groups including the Minnesota Chamber of Commerce wrote that the bill would open the floodgates to litigation and undermine the case law that courts developed around the current standard — like the requirement that a reasonable person must find the conduct inappropriate.
“The case law is designed to try to weed out what is really discriminatory and what really alters the terms and conditions of employment, as opposed to being boorish behavior,” employment attorney Kurt Erickson told House members at a hearing last week.
He said the severe or pervasive standard, which was established in the ’80s, has helped the courts find the line between those two types of behavior.
The state statute currently defines sexual harassment as various unwelcome actions that are sexual in nature and that meet certain criteria, such as creating “an intimidating, hostile, or offensive environment.” The proposed change clarifies that harassment doesn’t have to be severe or pervasive to create such an environment.
Employers are liable for their work environment, and they need clear standards for what constitutes a proper environment that is not hostile or offensive, said Joe Witt, president and CEO of the Minnesota Bankers Association. He was one of many people who signed the letter to Peppin.
“If you eliminate the standards and don’t replace it with something, how will an employer know that what they’re providing is or is not a hostile work environment that is actionable under the law?” Witt said.
Counties are also watching for potential changes to the standard, said Julie Ring, executive director of the Association of Minnesota Counties. They are trying to understand how they should change their employee training and policies if the severe and pervasive standard is removed, she said.
Peppin said lawmakers could still amend the bill, and legislators continue to talk to concerned parties.
But she said the severe or pervasive requirement is so strict that sexual harassment cases rarely progress.
“People need to have their day in court,” she said. “Whether they prevail or not is going to be determined by the facts they bring forward, but they ought to at least be able to get those details before the court.”
Over the past few months, Peppin has helmed a subcommittee that looked into legislative policies around sexual harassment. The subcommittee was formed after two lawmakers were accused of sexual harassment and resigned last year.
Housley said she still believes in the bill, but wants to address concerns.
“I want to hear everybody out on all sides of it and come up with language that makes sense and that will work and not harm any community,” she said.