On Tuesday, June 3, 2020, the Minnesota Supreme Court issued its long-awaited decision in Kenneh vs. Homeward Bound, Inc., upholding the “severe or pervasive” standard applied to sexual harassment claims due to hostile work environment under the Minnesota Human Rights Act (MHRA). The standard, adopted from parallel federal Title VII litigation, has been applied to hostile work environment claims under the MHRA for over 30 years. It confines actionable sexual harassment to severe (meaning bad) or pervasive (meaning frequent) conduct that sufficiently alters the conditions of employment. Boorish, chauvinistic, or immature conduct has generally not been considered actionable.
The supreme court’s decision is not without implications for the employer’s legal risk, though. Notably, the court cautioned trial courts against relying on analogous federal decisions from just a few years ago, as each case must be decided to take into consideration societal change or attitudes with the understanding that reasonable people “would likely not tolerate the type of behavior courts previously brushed aside.” Consulting analogous cases is exactly how state court judges have determined what is severe or pervasive for decades. And it is how employers and attorneys evaluate legal risks and defenses. But the court suggests that the facts of federal decisions from as recent as 2013 no longer represent the types of behavior reasonable people would tolerate. And the court offers no guidance on how judges are to apply a now organic standard based on societal attitudes. The aftermath of Kenneh may simply be an abundance of summary judgment denials—so that juries can apply the norms of the day, as opposed to judges. This will, of course, increase the costs and risks of harassment claims,
This is a significant decision for Minnesota employers who must now, more than ever, be mindful of the type and frequency of conduct employees can objectively tolerate, giving particular attention to unwanted sexual pursuits in the workplace. That said, nothing in Kenneh changes the fact the best way to defend against a sexual harassment claim is to take prompt and effective remedial action after receiving a complaint, something the supreme court found Homeward Bound had failed to do. The court’s decision is also a good reminder for employers to update their sexual harassment training materials to reflect the seismic shift in public attitudes toward sexual harassment of the last few years. And, if an employer has not provided training in the last few years, now may be a good time.