Severe or pervasive: A House bill, meant to nudge courts away from a “severe or pervasive” standard for judging whether sexual harassment cases can survive beyond summary judgment, is moving ahead.
House File 4459, authored by Majority Leader Joyce Peppin, R-Rogers, was approved unanimously in a late-night April 26 vote of the Civil Law and Data Practices Policy Committee. It was then forwarded to the House floor to await a vote.
Peppin said her bill aims to lower the bar on sexual harassment litigation. The “severe or pervasive” standard established by U.S. Supreme Court precedent in Meritor Savings Bank v. Vinson (1986)—which Minnesota courts have subsequently followed—is too high, she said.
“That’s where the problem lies,” Peppin said. “It’s almost impossible to reach that.”
Speaking to Civil Law committee members, employment attorney Sheila Engelmeier gave several examples of just how high that bar is.
One example is the 8th Circuit Court of Appeals’ LeGrand v. Area Resources for Community and Human Services case (2005). That court determined that three separate incidents of harassment over a nine-month period were not enough to meet a “severe or pervasive” standard, Engelmeier said.
The incidents involved a male worker who was repeatedly pressured for sex by a male manager, she said. In one incident, the manager reached for the man’s buttocks and genitals, then forced a kiss on him, Engelmeier said.
In his December 2017 Kenneh vs. Homeward Bound ruling, Hennepin County District Judge Mel Dickstein wrote that the “severe or pervasive” standard required him to throw out a case. He criticized the standard he felt constrained to follow.
“Unwanted sexual advances, belittling sexual banter, touching and mocking sexual language are no longer viewed as merely boorish, obnoxious or immature,” Dickstein’s opinion says. “They should be actionable.”
However, the existing standard had some defenders.
Mike Hickey, a lobbyist for the National Federation of Independent Businesses, spoke against Peppin’s bill. He said reducing today’s tougher standard would burden struggling small businesses, which often can’t afford HR departments and or offer thorough training to workers.
It likely also would result in more litigation against small businesses, he said.
“This is a big change, throwing out a long-term precedent that has guided the judiciary of the federal government and the state government,” Hickey said. The replacement standard, he argued, would be too vague.
Kurt Erickson, a Minneapolis labor and employment defense attorney, also opposed the bill. He pointed to a litany of cases—Gagliardi vs. Otho-Midwest, Devane vs. Sears Home Improvement Products, and Hansen vs. Regency Corp., among them—to demonstrate that Minnesota courts do reverse summary judgments and affirm sexual harassment findings.
“It’s probably not what we want to hear,” he said. “But the answer here is that the Supreme Court is correctly applying the Minnesota Human Rights Act and it is sending for trial cases that involve actual harassment.”
In the end, after nearly three hours of testimony, lawmakers sided with the majority leader. “We need to take a look at this,” Peppin said in closing. “It gone off the rails from where it should be.”
The bill passed in a unanimous voice vote. It needs a rule waiver before it is scheduled for a hearing on the House floor.
Senate File 4031, the companion bill by Sen. Karin Housley, R-St. Marys Point, has yet to be heard in the Senate Judiciary and Public Safety Finance and Policy Committee.
Human Rights cuts: Gov. Mark Dayton last week came to the defense of the state’s Human Rights Department, saying a GOP budget bill that proposes a $1.4 million cut to the department is “ill-conceived and unwarranted.”
The cuts are included in House File 4016, authored by Rep. Sarah Anderson, R-Plymouth, chair of the State Government Finance Committee. HF 4016, the government operations omnibus supplemental finance bill, passed Anderson’s committee on April 18. It contains a total of $7 million to agency budgets.
It later passed through the House Taxes committee before being approved by House Ways and Means on April 26. From there it went to the floor for an as-yet unscheduled vote.
Human Rights is not the only agency to lose money under the bill’s provisions; the Attorney General’s Office figures to lose $1 million. But the cuts are particularly steep for Human Rights, which figures to lose one-third of its overall base budget — slashing it from $4.580 million to $3.171 million if the cuts are enacted.
“The department is facing one of the largest percentages of cuts of any agency,” Human Rights Commissioner Kevin Lindsey said in an interview Monday. He called the development “very disappointing.”
Under the bill, Lindsey said, the department cannot remove staff from its new St. Cloud office. So all layoffs would have to come out of the agency’s St. Paul headquarters, he said.
That would result in the loss of 18 St Paul staff, Lindsey said, leaving just 25 of its 43 employees—10 fewer than the 35 employees who worked there when Lindsey became commissioner in 2011. In 1996, the agency had 53 workers.
Lindsey said the cuts would curtail the agency’s ability to investigate discrimination complaints, most of which involve people with disabilities, he said. It would also impact the department’s ability to enforce equal pay and “ban the box” laws that prevent prospective employers from querying about criminal histories in job interview.
It would also curb the department’s school-bullying eradication efforts and on-site workplace audits. All that is happening at the same time that the state is become increasingly diverse, he said.
Asked at the hearing to explain the cuts, Anderson pointed to a Human Rights probe into disparities in school district suspensions affecting Native Americans and African-Americans.
Speaking before Ways and Means, Anderson said the project was launched without any complaints having been filed. Lindsey countered that, while no “administrative charges” have been filed, he has heard complaints from parents across the state on the issue.
Anderson also accused the department of refusing to reveal how much money it was spending on that initiative.
“I’m really disappointed when an agency that I have purview over refuses to provide the financial data that the committee requests,” Anderson said. “I think that makes it really challenging for us as a committee to do our job.”
In an April 27 news release, Dayton accused the GOP of pushing “destructive legislation” by cutting into established biennial agency budgets.
“Last year, we agreed to a two-year budget for the Department of Human Rights and all other state agencies,” the governor’s statement reads. “I have made it very clear: I will veto any bill that cuts previously-established state agency budgets.”
Anderson’s bill does not include cuts alone. It provides $4 million for the governor’s proposed sexual harassment office for state employees.