United States: Minnesota Legislature Proposes Sweeping Change To Sexual Harassment Law

Last Updated: May 1 2018
Article by Joseph D. Weiner and Kurt J. Erickson

On April 23, 2018, Minnesota House Majority Leader Joyce Peppin introduced HF 4459, a bill to amend the Minnesota Human Rights Act ("MHRA") to change the legal standard for sexual harassment. The bill, which has wide bipartisan support and 34 cosponsors, has a companion bill in the Senate sponsored by Senator Karen Housley. If passed, the bill would do away with the "severe or pervasive" standard for sexual harassment claims, but is silent on the replacement. As drafted, the bill would likely create confusion and uncertainty for employers, employees, and the courts statewide.

The History of the "Severe or Pervasive" Standard

The Minnesota Supreme Court recognized in 1980 that sex harassment was actionable under the MHRA in Continental Can Co., Inc. v. State.1 Lacking any guidance from the Legislature, the court turned to the language in Title VII guidelines promulgated by the federal Equal Employment Opportunity Commission ("EEOC") to decide whether sexual harassment was actionable under the MHRA. Those guidelines characterized "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" as sexual harassment when "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."2 The court adopted this standard and upheld the Department of Human Rights' determination that the plaintiff had experienced sexual harassment.

In 1982, the Legislature amended the MHRA and essentially imported in full the language from the EEOC guidelines and codified the decision in Continental Can. The amended statute defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when . . . that conduct or communication has the purpose or effect of substantially interfering with an individual's employment . . . or creating an intimidating, hostile, or offensive employment . . . environment."3 That definition remains in effect today.

Four years later, the United States Supreme Court first recognized sexual harassment as prohibited sex discrimination under Title VII of the Civil Rights Act of 1964.4 The Court found that in order for conduct to rise to the level of harassment, it "must be sufficiently severe or pervasive to alter the conditions of [the employee's] employment and create an abusive working environment."5 The Court later clarified that under the severe or pervasive standard the conduct or communications must be both objectively abusive, i.e. abusive as judged by a reasonable person, and subjectively abusive, i.e. perceived by the employee as abusive.6 Inherent in the objective component of the standard is societal expectations of what conduct crosses the line, and what does not.

Given that the language in the MHRA came directly from the regulations interpreting Title VII, the Minnesota Supreme Court adopted the severe or pervasive standard in interpreting sexual harassment claims under the MHRA. Key to the analysis is whether the complained-of conduct was severe or pervasive. One incident of improper touching could rise to the level of severe, or many mildly offensive comments could be pervasive – either situation could meet the standard.

Most recently, the Minnesota Supreme Court affirmed the severe or pervasive standard in Rasmussen v. Two Harbors Fish Co.7 In Rasmussen, the employees' supervisor made multiple comments of a sexual nature and touched one employee on her backside. The trial court dismissed the employees' claims, but the Minnesota Supreme Court reversed and sent the case for trial for a determination of liability under the severe or pervasive standard.

Representative Peppin's Proposed Amendment

Calling it the "first step toward one day overturning this Supreme Court [severe or pervasive] precedent," Representative Peppin proposed HF 4459. The bill adds language to the MHRA that provides: "[a]n intimidating, hostile, or offensive environment . . . does not require the harassing conduct or communication to be severe or pervasive." If enacted, the change would go into effect on August 1, 2018 and would not apply retroactively.

Employer Reaction

The proposed language has created concern and uncertainty for employers. Businesses across the state have operated for years with a clear understanding about what types of behavior constitute sexual harassment and have developed policies and procedures to address and correct inappropriate employee behavior. The proposed change not only undermines those efforts; it also fails to provide any alternative standard for employers, employees, or the courts, to apply.

On April 26, the House Civil Law and Data Practices Committee held a hearing on the proposed amendment. Representative Peppin indicated that the intent of her amendment was to return harassment to the plain language of the statute, which would find harassment if conduct or comments "substantially interfere" with the employment environment. There was also discussion that the intent of the amendment was not to overturn any other aspect of harassment law, including both the subjective and objective standards. Some testifying witnesses and Representative Loonan expressed concern that there was no definition or guidance concerning the term "substantially interfere," but the amendment passed the Committee by voice and will move to the House floor for debate.

Whatever the purported intent of the members addressing the issue, the change only states that harassing conduct or communication need not be severe or pervasive. Of course, the severe or pervasive standard was the direct result of this lack of clarity from the Legislature. So the amendment is essentially telling the courts, "we don't agree with your interpretation of 'substantially interferes' but we are not going to give you an alternative." It leaves to the courts the task of creating and applying an alternate standard.

Whatever the intent of the bill, the result is far from clear. A judge may interpret the change to require any subjective belief that a single statement is unwanted as actionable harassment leading to employer liability. Employers could expect the plaintiff's bar to argue that regardless of the objective view of the actions, if the result of one comment "substantially interfered" with a particular employee's work performance, that is actionable harassment.

Alternatively, a judge may decide that conduct or communications must be both severe and pervasive because such a definition conforms to the language of the statute. Still other judges may require "egregious" behavior or behavior that "shocks the conscious" before harassment becomes illegal. And while the Legislature may disclaim any intent to overturn other aspects of harassment law, such as the objective and subjective requirements, to the extent those requirements are functions of the severe or pervasive standard, employers could expect every aspect of harassment law to be under attack by the plaintiff's bar. The only certainty if the amendment is signed into law is that it will take years for cases to wend their way through the courts until a new standard is finalized. In the interim, businesses will struggle to respond to harassment claims with no guidance from the Legislature or the courts.

The Legislative session ends on May 21. The bill will continue to have hearings and require consideration over the next four weeks. The bill has already passed out of committee and is headed to the House floor for a full vote. The Senate companion bill was referred to the Senate Judiciary Committee, but the Committee has yet to take action on the proposal. Littler is following the proceedings and will provide periodic updates on significant developments. Littler will also present a webinar to discuss the bill and its implications for employers.

The #MeToo movement continues to be a powerful force for change, and the Legislature appears to recognize the movement's importance by these recent actions. Employers are key stakeholders in these issues and no single event will have a greater impact on their employees than this potential sea change. These changes have the potential to create a unique and unclear standard in Minnesota that will make it different from other states and federal law. Whether the Legislature enacts this change or not, Littler is available to provide guidance to employers about how to navigate these issues moving forward.


1. 297 N.W.2d 241 (Minn. 1980).

2. 45 Fed. Reg. 25025 (1980) (later codified in 29 C.F.R. § 1604.11(a)).

3. Minn. Stat. § 363A.43, subd. 43(3).

4. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-68 (1986).

5. Id. at 67.

6. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).

7. 832 N.W.2d 790 (Minn. 2013).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Joseph D. Weiner
Similar Articles
Relevancy Powered by MondaqAI
Schnader Harrison Segal & Lewis LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Schnader Harrison Segal & Lewis LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions