Sexually Harassed Business Woman

Under the Minnesota Human Rights Act (“MHRA”), it is an unfair employment practice for an employer to discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment, on the basis of the individual’s sex. (See footnote 1.) For purposes of sex discrimination, the term “discriminate” includes sexual harassment. (See footnote 2.) Further, “sexual harassment,” as defined in the MHRA, includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct of a sexual nature when:

  1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
  2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or,
  3. such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. (See footnote 3.)

Subparts (1) and (2) are commonly referred to as “quid pro quo” sexual harassment. Subpart (3) is known as “hostile work environment.” (See footnote 4.) The MHRA thus distinguishes between separate forms of actionable sexual harassment.

Gender discrimination claims under the MHRA are analyzed under the McDonnell–Douglas burden-shifting analysis. (See footnote 5.) The McDonnell–Douglas analysis involves a three-step process:

First, an employee must demonstrate a prima facie case by a preponderance of the evidence. (See footnote 6.) The specific elements of the plaintiff’s prima facie case must be modified for varying factual patterns and employment contexts. (See footnote 7.) If the employee establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment decision. (See footnote 8.) If the employer meets its burden, the employee must prove by a preponderance of the evidence that the legitimate reason offered by the employer was a mere pretext for reprisal. (See footnote 9.) An employee may show pretext either directly by persuading the court that a discriminatory reason likely motivated the employer or indirectly by showing that the employer’s proffered explanation is “unworthy of credence.” (See footnote 10.) Proof of discrimination may be shown by direct evidence of discriminatory motive, such as where an employer announces he will not consider females for positions. (See footnote 11.) In the alternative, where direct evidence is not available a plaintiff may show discrimination by other indirect means. (See footnote 12.)

Sexual Harassment Claim:

In order to establish a case of quid pro quo sexual harassment, a plaintiff must show:

  1. he/she is a member of a protected group;
  2. he/she was subject to unwelcome harassment in the form of sexual advances or requests for sexual favors;
  3. the harassment was based upon sex; and,
  4. submission to the unwelcome advances was an express or implied condition for receiving job benefits or his/her refusal to submit resulted in tangible job detriment. (See footnote 13.)

The threshold for determining that conduct is “unwelcome” is whether it was uninvited and offensive. (See footnote 14.) The court may consider the victim’s participation in the conduct, the victim’s speech and manner of dress, and whether there was a personal relationship between the harasser and the victim in determining whether the conduct was uninvited or offensive. In regards to the fourth element, an unfulfilled threat of an adverse employment action is insufficient to state a claim, as harassment must result in a tangible job detriment if it is to be actionable. (See footnote 15.)

Hostile Work Environment Claim:

The MHRA permits a hostile work environment claim based on sex that is separate from its prohibition on sexual harassment. (See footnote 16.) To succeed on a hostile work environment claim, a plaintiff must prove that:

  1. he/she is a member of a protected group;
  2. he/she was subject to unwelcome harassment;
  3. the harassment was based upon sex; and,
  4. the harassment affected a term, condition or privilege of her employment. Id.

In order to demonstrate that the harassment affected a term, condition, or privilege of employment, a plaintiff must show that the harassment was “so severe or pervasive as to alter the conditions of the [plaintiff’s] employment and create an abusive working environment.” (See footnote 17.) To clear the high threshold of actionable harm, the plaintiff must show that the workplace is “permeated with discriminatory intimidation, ridicule, and insult.” (See footnote 18.)

In addition, the work environment must be both objectively and subjectively offensive in that a reasonable person would find the environment hostile or abusive and the victim in fact perceived it to be so. (See footnote 19.) In determining whether an environment is sufficiently hostile or abusive to support a claim, courts look at the totality of the circumstances. (See footnote 20.) Relevant circumstances include the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. (See footnote 21.)

Types of conduct that generally do not rise to the level of actionable harassment include asking an employee to dinner once or paying a personal compliment with no discussion of sexual favors, innocent flirtation, and isolated incidents which have no adverse impact on employment. (See footnote 22.) Conduct which can constitute sexual harassment if it is sufficiently pervasive includes “dirty” jokes and comments, prominently displayed centerfolds or pin-ups, sexually suggestive remarks, physical touching (even when non-sexual in nature), questioning regarding an employee’s sex life, and derogatory or abusive comments based on an employee’s gender. (See footnote 23.)

Damages Available:

An aggrieved party may be entitled to compensatory and punitive damages, as well as reasonable attorney’s fees and costs. (See footnote 24.) Compensatory damages may be awarded in an amount up to three times the actual damages sustained to the aggrieved party. (See footnote 25.) Actual compensable injuries may include “impairment of reputation, personal humiliation, and mental anguish and suffering,” in addition to lost wages. (See footnote 26.)

[1] Minn. Stat. § 363A.08, subdiv. 2(3).

[2] Minn. Stat. § 363A.03, subdiv. 13.

[3] Minn. Stat. § 363A.03, subdiv. 43.

[4] See Frieler v. Carlson Marketing Group, Inc., 751 N.W.2d 558, 579-80 (Minn. 2008); Fore v. Heath Dimensions, Inc., 509 N.W.2d 557, 559-560 (Minn. Ct. App. 1993).

[5] Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983).

[6] Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101–02 (Minn. 1999).

[7] Kaster v. Independent School District No. 625, 284 N.W.2d 362, 364 (Minn. 1979).

[8] Hubbard, 330 N.W.2d at 445.

[9] Id.

[10] Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).

[11] Id.

[12] Id.

[13] Cram v. Lamson & Sessions Co., 49 F.3d 466, 473 (8th Cir. 1995); Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F.Supp.2d 953, 966 (Minn. 1998).

[14] Burns v. McGregor Electronic Industries, Inc., 989 f.2d 959, 962 (8th Cir. 1993).

[15] Grozdanich, 25 F.Supp.2d at 966.

[16] LaMont v. Indep. Sch. Dist. No. 728, 814 N.W.2d 14, 21-22 (Minn. 2012) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

[17] Goins v. West Group, 635 N.W.2d 717, 725 (Minn. 2001).

[18] Duncan v. General Motors Corp., 30 F.2d 928, 934 (8th Cir. 2002).

[19] Id.

[20] LaMont, 814 N.W.2d at 21-22.

[21] Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998)).

[22] See 17 Minn. Prac., Employment Law & Practice § 11:9 (3d ed.) (citing Bersie v. Zycad Corp., 417 N.W.2d 288 (Minn. Ct. App. 1987) (calling employee “sweetheart” and “doll,” sexual joking, and close physical proximity on one occasion do not support claim for sexual harassment).

[23] Id. (citing Hall v. Gus Const. Co., Inc., 842 F.2d 1010 (8th Cir. 1988) (conduct of a nonsexual nature properly considered in determining whether sexual harassment occurred); Wirig v. Kinney Shoe Corp., 461 N.W.2d 374 (Minn. 1990) (finding that statements including comments about plaintiff’s body, offensive sexual names, discussions about sexual fantasies, nonconsensual kissing, pinching, and patting constitute sexual harassment).

[24] See Minn. Stat. §§ 363A.29, subdiv. 4 (in addition to compensatory and punitive damages awarded to an aggrieved party, an administrative law judge shall order any respondent found to be violation to pay a civil penalty to the state); See also Minn. Stat. § 363A.33, subdiv. 7 (court may allow prevailing party a reasonable attorney’s fee as part of the costs).

[25] Minn. Stat. § 363A.29, subdiv. 4.

[26] Kohn v. City of Minneapolis fire Dep’t, 583 N.W.2d 7, 14 (Minn. Ct. App. 1998) (quoting Minn. Stat. § 363.071 (1996); now codified as § 363A.29, subdiv. 4(a)).