Sexual Harassment in Minnesota

last updated September 2012

Sexual harassment is a type of sex discrimination involving “verbal or physical abuse of a sexual nature.”[1] While sexual harassment often occurs in employment situations, under both Minnesota and federal law[2] it may also occur in education, housing, and public accommodations and services. The Minnesota State Legislature has adopted a clear public policy against sex discrimination, explicitly including sexual harassment in the law.[3]
 
Development of Sexual Harassment Law in Minnesota
Minnesota law first recognized sexual harassment as a form of sex discrimination in the 1980 case of Continental Can Company v. State.[4] In response to the court’s decision, the legislature amended the Minnesota Human Rights Act (MHRA) in 1982 to include a definition of and specific prohibition against sexual harassment.[5] In 1991, a Minnesota federal district court granted class-action status to Jenson v. Eveleth Taconite Co., which grew out of a 1982 complaint against a Minnesota Iron Rage mining company, making the case the first sexual harassment suit to gain class-action status in the United States.[6] (The case was later the basis for a book, Class Action,[7] that was adapted into the film North Country.[8])
 
Minnesota’s Definition of Sexual Harassment
Under the MHRA, “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” if:
 
(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.[9]
 
Federal vs. Minnesota Law
Because of the substantial similarities between the language and purposes of the MHRA and Title VII, the federal law prohibiting discrimination in employment, Minnesota courts apply the principles developed in Title VII cases in analyzing cases brought under the Minnesota law.[10] Under both federal and state law, a plaintiff in an employment context must establish:
  1. Membership in a protected class.
  2. Occurrence of unwelcome harassment.
  3. That the harassment was based on plaintiff’s status in the protected class.
  4. That the harassment affected a term, condition, or privilege of employment or created a hostile work environment. [11]
Under the MHRA sexual orientation is a protected class. Title VII does not provide protected class status for sexual orientation.
 
Understanding the Legal Elements of Sexual Harassment
 
Conduct Constituting “Harassment.” Under Minnesota law, unwanted sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature constitute harassment under three different circumstances:
(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.[12]
The first two circumstances are known as quid pro quo harassment. The third type of harassment is considered hostile environment harassment.
 
In 1997, the Minnesota Supreme Court held that the definition of “sexual harassment” does not require that the prohibited conduct be motivated by interest in sexual activity with the plaintiff.[13] In 2012, the Minnesota Supreme Court decided that the MHRA allows for a claim of hostile work environment, even if the harassing conduct is completely non-sexual. However, in order to constitute harassment under the MHRA, the conduct must unreasonably interfere with the employee’s ability to perform the work.[14]
 
Employer Liability. In Frieler v. Carlson Marketing Group, Inc.,[15] the Minnesota Supreme Court adopted the federal sexual harassment employer liability standard, termed the “Faragher/Ellerth” standard, for sexual harassment cases brought under the MHRA. According to this standard, an employer will be liable for quid pro quo harassment if the harasser has supervisory authority over the victim. If the conduct is hostile environment harassment, the employer may avoid liability by showing (1) “that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (2) “that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”[16]
 
Damages. Under Minnesota law, sexual harassment plaintiffs may recover compensatory damages up to three times the actual amount suffered, damages for mental anguish and suffering, punitive damages up to $25,000 and reasonable attorneys’ fees.[17] The Minnesota standard for awarding punitive damages in sexual harassment cases is proof by “clear and convincing evidence” of “deliberate disregard of the rights and safety of others.”[18] In Jenson v. Eveleth Taconite, a federal appellate court held that employees seeking damages for mental anguish do not have to prove the percentage of psychological suffering caused the sexual harassment.[19] A plaintiff may sue for multiple causes of action, such as a claim for battery in addition to sexual harassment, but may not receive a double recovery for the same harm.[20]
 
Sexual Orientation and Sexual Harassment. Minnesota law provides a remedy for sexual harassment based sexual orientation.[21] In Cummings v. Koehnen the Minnesota Supreme Court established that an employee alleging same-sex harassment under the MHRA need not prove that the harasser is homosexual.[22]
 
Filing a Sexual Harassment Complaint
A victim of sexual harassment may file a complaint with the Minnesota Department of Human Rights (MDHR)[23] or the appropriate federal agency. A complaint of sexual harassment in employment may be filed with the federal Equal Employment Opportunity Commission (EEOC).[24] A complaint of sexual harassment in housing may be filed with the U.S. Department of Housing and Urban Development.[25] Minnesota complaints that are filed with a federal agency may be delegated to MDHR for investigation.[26] A claim may be filed with MDHR up to one year following the most recent incident of harassment, but claims must be filed with a federal agency within 180 days of the most recent incident.
 
Many cases of sexual harassment are resolved in an administrative process brought by the MHRA or appropriate federal agency, but a case may be filed directly in district court or may be removed from the agency and pursued in court.[27] Criminal prosecution may also be available in cases of assault or criminal sexual conduct.
 
Sexual Harassment and Minnesota Schools
Minnesota law requires that boards of public school districts, which govern elementary, middle, and high schools, adopt harassment policies, include reporting procedures that apply to students, teachers, administrators, and other school personnel, and lay out disciplinary measures for violation of the policy. The policy must be conspicuously posted throughout each school building and included in the school’s student handbook on school policies. The statute lays out elements of a model policy for districts to use.[28] In addition, the Minnesota legislature requires governing boards of the state’s public colleges and universities to adopt a “clear, understandable written policy on sexual harassment.”[29]


[1] Black’s Law Dictionary.
[2] See U.S. Country Page on sexual harassment, http://www.stopvaw.org/united_states_4.html.
[6] 139 F.R.D. 657, 667 (D.Minn.1991).
[7] Bingham, Clara and Gansler, Laura Leedy, Class Action: The Story of Lois Jenson and the Landmark Case that Changed Sexual Harassment Law (2003).
[8] North Country, Dir. Niki Caro, Warner Brothers (2005).
[10] Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96 (Minn. 1999) (citing Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441).
[11] Lamont v. Independent School District #728, 814 N.W.2d 14 (Minn. 2012).
[13] Cummings v. Koehnen, 568 N.W.2d 418, 423 (1997).
[14] Lamont v. Independent School District #728, 814 N.W.2d 14 (Minn. 2012).
[16] Id.
[20] Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 379-81 (Minn. 1990).
[21] See Minn. Stat. §§ 363A. 08 - .09, 363A.11 - .13.
[22] 568 N.W.2d 418 (Minn. 1997).
[23] Minnesota Department of Human Rights, http://www.humanrights.state.mn.us/intake/index.html.
[24] U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov/employees/charge.cfm.
[26] U.S. Equal Employment Opportunity Commission, Fair Employment Practices Agencies (FEPAs) and Dual Filing,
[27] Minnesota Department of Human Rights Complaint Handling Process Chart, http://www.humanrights.state.mn.us/intake/process_chart.html