Bill would change ‘severe or pervasive’ standard

The case is barely a blip on the continuum of Minnesota jurisprudence. But it was a monumental event in the life the young woman who told her story to members of the House Judiciary committee on Feb. 7. We’re using only her first name.

In 2014, Ami was a server in a Golden Valley restaurant. Two of its frequent customers expressed a fondness for her and asked managers to make her their designated waitress. But their too-friendly conduct made her uncomfortable. One told Ami he had a crush on her and was undeterred when informed she had a boyfriend.

One night after work, Ami said, she walked to her car. The man who had professed his adoration was waiting outside. He suddenly raced his pickup towards her car and blocked it in, his headlights nearly blinding her. He quickly approached her with his truck door standing open.

“Two other servers sprinted from the other end of the parking lot and punched and yelled at the man to stop it,” Ami told lawmakers. “All three of us thought I was about to be abducted.”

After that, she asked managers not to assign her to the men’s table anymore. They told her she had to keep serving them because they’d specifically requested her, she said.

Their attention grew even more intolerable. They would touch her, stroke her arms, try to steal unwanted hugs—even after she told them to stop, Ami said. Sometimes she would hide in the kitchen, but couldn’t stay there long. At times, a manager would even hover near the restaurant exit to make sure Ami told offered the men a friendly goodbye.

After the parking lot incident, she got an order for protection against the two men. But they were allowed to keep coming into the restaurant and she was required to keep serving them, Ami said. The whole episode went on for about a year.

In the end, she sued, charging workplace sexual harassment in violation of the Minnesota Human Rights Act and the federal Civil Rights Act. On Sept. 10, 2014, her case was sent to arbitration, where was it was heard by retired 1st Judicial District Court Judge Mary Pawlenty.

In June 2015, Pawlenty ruled against Ami. But she was not thrilled about it.

In her order, Pawlenty complained that she was precluded from relying on a lower judicial review standard than the “severe or pervasive” benchmark that has become the norm in sexual harassment cases.

“The case law makes it apparent that the facts in this case do not clear the hurdle,” Pawlenty wrote. “Were this matter before a Minnesota federal district court judge, it would similarly be dismissed on summary judgment.”

Still, the restaurant should take no solace in her ruling, Pawlenty wrote. It did little to relieve the distress its customers caused her, Pawlenty wrote, adding that the young woman “deserved better from her employer.”

With that, the case was dismissed.

Standard of review

House File 10 aims to change the standard of review so cases like Ami’s can survive summary judgment and be heard at trial. Rep. Kelly Moller, DFL-Shoreview, is the bill’s lead author.

It would add this language to Minnesota Statutes Section 363A.03: “An intimidating, hostile or offensive environment … does not require the harassing conduct or communication to be severe or pervasive.”

The same measure was brought forward last year by former House Majority Leader Joyce Peppin, R-Rogers. It had broad bipartisan House support, but silently died in the Senate without a hearing. This year, however, skepticism is detectable in both chambers.

Judges have been filtering sexual harassment cases through a “severe or pervasive” lens since the U.S. Supreme Court’s Meritor Savings Bank v. Vinson decision (1986). In 2007’s Gagliardi v. Ortho-Midwest suit, the Minnesota Court of Appeals refined the standard for Minnesota courts, arguably making it stricter (though that court partially reversed a lower court’s summary judgment).

For a case to be actionable, the Gagliardi court ruled, harassment must be so severe or pervasive that it “altered the conditions of employment and created an abusive work environment.” Further, judges must weigh the totality of circumstances, including such factors as the frequency and severity of discriminatory conduct and “whether it is physically threatening or humiliating, or a mere offensive utterance.”

Judges also must consider whether the harassment interferes with work performance, that court said.

Pawlenty isn’t the only judge to suggest the standard is too high. In December 2017, Hennepin County District Judge Mel Dickstein wrote in his Kenneh vs. Homeward Bound ruling that the benchmark forced him to throw out a case that should have been actionable.

State statute doesn’t call for such a high bar.

In 1982, the Legislature declared sexual harassment a form of discrimination under the Minnesota Human Rights Act. That law 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.”

Sheila Engelemeier, an employment attorney who supports Moller’s bill, said that the 1982 Minnesota Legislature—not the courts—got it right. By enacting Moller’s bill, she said, state courts would be directed to listen to the Legislature, lower the bar on sexual harassment cases and let sexual harassment cases be heard in court.

“We must take this rock off the statute,” she said.

Cautionary note

Business interests aren’t so sure that’s a good idea.

Mike Hickey is the state director of the National Federation of Independent Business. He testified against the bill on Feb. 7 just as he did in 2018.

Hickey said his members, many of whom are small employers lacking practice liability insurance, worry the legislation might result in loads of litigation that they can ill afford.

“We are very concerned this bill is taking the standard that every court in this country, federal and state, has used since 1986 and wiping it out without replacing it,” Hickey said.

Kurt Erickson, a labor and employment lawyer with Littler Mendelson P.C., agreed that if the bill was adopted into law, business’ litigation costs would rise. And there is little reason to go that route, he suggested: Courts already apply the severe or pervasive standard in a more “reasonable light” than detractors claim.

“What we can do—and with the Minnesota courts have done—is interpret the Minnesota Human Rights Act, for lack of a better way to say it, in a much more employee-friendly manner,” he said. “That is the history.”

Ultimately all the House committee members voted for Moller’s bill. But several Republicans expressed new reservations. Rep. Peggy Scott, R-Andover, voted for the bill last year and even gave it a hearing as chair of the old Judiciary and Civil Law committee. But she said she has learned more since then.

She said she now worries about the bill’s “offensive environment” phrasing and urged that its implications be carefully studied.

“I don’t want to be sexually harassed, I don’t want my daughter to be sexually harassed,” Scott said. “But I also have a son and a husband and I don’t want them to be falsely accused. … This is serious business.”

Scott offered an amendment that would have retained a form of the current standard, but altered to say “severe and pervasive.” That motion failed.

Rep. Brian Johnson, R-Cambridge, was last year’s House Public Safety committee chair. He said that, while he would vote to pass the bill out of committee, he thinks it needs more work.

“I do trust that the author will work with the groups and try to make this a better bill, addressing some of the concerns that we have,” he said.

In the end, it got a 16-0 vote and was sent to the general register to await a House floor vote. So far, however, no Senate companion has emerged.

Senate Majority Leader Paul Gazelka, R-Nisswa, said Monday that he is not sure whether a companion bill would get a hearing in the upper chamber.

“Certainly I am open to that,” Gazelka said. “But in terms of the actual language that is coming out of the House, I can tell you that a lot of people from a lot of different groups have said that would be problematic.”

“We’re going to be cautious on it,” said Sen. Warren Limmer, R-Maple Grove, when asked if he would hear the bill’s Senate version should it reach his Judiciary committee.

“We are not going to ignore the issue,” Limmer said. ”But we may come up with a different version.”