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Rep. Kelly Moller, DFL-Shoreview, author of the House harassment bill, said during floor debate March 21 that the prevailing standard is so high that unwanted kissing and touching, requests for oral sex and comparing female employees’ breasts are not enough to merit a successful harassment claim in Minnesota. (Staff photo: Kevin Featherly)
Rep. Kelly Moller, DFL-Shoreview, author of the House harassment bill, said during floor debate March 21 that the prevailing standard is so high that unwanted kissing and touching, requests for oral sex and comparing female employees’ breasts are not enough to merit a successful harassment claim in Minnesota. (Staff photo: Kevin Featherly)

In the Hopper: House harassment stand, lawyerly loans

House harassment stand: By a vote of 113-10, the Minnesota House on March 21 approved a sexual harassment reform bill that does away with the “severe or pervasive“ judicial review standard, which critics contend blocks too many litigants from getting their claims heard by juries.

Before minor changes were added through an author’s floor amendment, House File 10 was a clone of a 2018 bill from former House Majority Leader Joyce Peppin, R-Rogers. The House voted 121-4 in support of the Peppin bill last year, but it stalled in the Senate.

This year, the Senate is working with a bill from Sen. Karin Housley, R-St. Marys Point, that is the House measure’s polar opposite. Rather than communicate to judges that the Legislature rejects the severe or pervasive standard, Housley’s Senate File 2295 would embed that standard into statute—where it currently does not exist.

Rep. Kelly Moller, DFL-Shoreview, is the House bill’s author. Speaking before the full House last week, she said the prevailing standard is so high that unwanted kissing and touching, requests for oral sex and comparing female employees’ breasts are not enough to merit a successful harassment claim in Minnesota.

“These facts are all from Minnesota cases where summary judgment was granted to the employer, so victims were denied justice,” Moller said. “And, of course, we don’t even know the number of victims who were told that their case shouldn’t proceed, because they’d never be able to satisfy the severe or pervasive standard.”

In response to critics who thought she was setting the bar too low, Moller offered an amendment changing one definition of sexual harassment. What formerly required “intimidating, hostile or offensive” behavior now would require “intimidating, hostile or materially offensive” conduct to qualify as harassment. In addition, the finder of fact would have to apply both an objective and subjective test to reach that conclusion.

Moller also inserted a clarification saying that judges should weigh the totality of circumstances in a case before allowing it to move forward. Her amendment was accepted in a voice vote on the House floor.

Rep. Linda Runbeck, R-Circle Pines, said in a March 21 floor debate that the state’s decades-old Human Rights Act has changed behavior in workplaces significantly over time. (Staff photo: Kevin Featherly)

Rep. Linda Runbeck, R-Circle Pines, said in a March 21 floor debate that the state’s decades-old Human Rights Act has changed behavior in workplaces significantly over time. (Staff photo: Kevin Featherly)

Despite the bill’s lopsided victory, it had its opponents. Rep. Linda Runbeck, R-Circle Pines, asserted that the state’s decades-old Human Rights Act has changed behavior in workplaces significantly over time. Companies now are more sensitive to the issue, she said, and routinely provide workers harassment training.

She said that if sexual harassment law needs reform, the measure ought to be more balanced—meaning more fair to employers. “You have the balance of power now completely one-sided,” Runbeck said. “Employers are so skittish, so nervous about having such a label put on them.”

Rep. Marion O’Neill, R-Maple Lake, disagreed with Runbeck but wanted to know if the bill turns the law into “a general civility code.” Moller said it avoids that by preserving case law. Employers taking reasonable steps to respond to allegations would not be liable, she said.

“So employers really can control their destiny here, if they act reasonably in response to these claims,” Moller said.

The bill passed the House after a relatively brisk 35-minute debate.

Housley’s bill passed Senate Judiciary by a 5-4 vote, with one Republican defection, on March 15. While the two measures are not companions, legislative leaders could declare them companions to move the bills into conference committee negotiations.

Interviewed immediately after the House vote, Moller signaled she would not be amenable to moving her bill toward Housley’s position if the full Senate passes her bill.

“I don’t know if I can commit to that right now,” Moller said. “Obviously, I have some really grave concerns about that. But I remain optimistic that we can work out a deal.”

At a March 22 press conference, Gov. Tim Walz said he hopes lawmakers find a way to reconcile the competing approaches. He avoided commenting directly on the Senate bill, but made it clear he stands firmly with the DFL-controlled House.

“I think we’re in the midst of a seismic change in how we view harassment in the workplace and I think there’s some well-thought-out legislation there,” Walz said. “So we’ll see. We’ll see.”

Lawyerly loans: Rural lawyers could get up to $75,000 of their student debt canceled if a bill from Sen. Nick Frentz, DFL-North Mankato, gains a toe hold.

Senate File 2587 is considered priority legislation by the Minnesota State Bar Association. It would establish a lawyers’ student loan repayment program administered by the state Office of Higher Education.

To be accepted as an applicant, a lawyer would have to commit to working five years in a “designated rural location”—defined as a county with fewer than 30,000 residents.

Additionally, applicants would have to devote at least 50 percent of their attorney time to people with incomes below 400 percent of the federal poverty guidelines.

The bill would allow the Higher Education commissioner to select a maximum of 10 attorneys per year to participate. To increase diversity, it encourages the commissioner to consider applicants based on gender, race, color, religion and other related criteria.

The Higher Education office would make annual disbursements directly to the attorney of $15,000 a year, or the balance of the loan depending on which sum is smaller, for the five years the attorney is enrolled.

Before payments are received, however, applicants would have to verify that their practice meets the program’s criteria. The attorney also would have to provide verification that the amount disbursed gets applied directly to student loan repayment.

Failure to fulfill those commitments would result in an immediate demand for repayment, though there is an exception for “emergency circumstances.”

Paul Godfrey, the Minnesota State Bar President, said the bill emerged out of discussions at MSBA-sponsored One Profession conferences, about the need for more Minnesota lawyers working outside the Twin Cities. Many rural lawyers are reaching retirement age, he said. Meanwhile, many rural law firms are having trouble recruiting qualified candidates.

“The explanation I’ve heard from several lawyers is that, ‘I have too much debt to go work in Greater Minnesota,’” Godfrey said.

Law students often leave school with debts topping $100,000, Godfrey said—even more if they do undergrad and graduate work together. “They need to find a job that pays enough to service that law school debt,” he said.

The lawyer shortage in rural Minnesota has many reverberations, not the least of which is a lack of judicial candidates for openings in Greater Minnesota. “In Hennepin and Ramsey when there’s an opening, they’re going to get 20, 30 or 40 applicants,” Godfrey said. “In Greater Minnesota when there’s an opening, you’ll get four, five or six applicants. It’s a stark contrast.”

Godfrey said the bill was recommended to and put to a vote of the MSBA Assembly. “It did come up from our membership,” he said. “There were enough people that were interested in it that it got up to the assembly and got a vote and was approved as a legislative priority.”

Godfrey said the bill, which requests an unspecified general fund allocation, still needs tweaking. He said bar members expressed concern at a recent conference in Bemidji that the 30,000 population ceiling might eliminate too many counties from consideration. Thirty-five of the 87 Minnesota counties have populations larger than 30,000.

Frentz could not be reached for comment on his bill, which was introduced on March 20. It was referred to the Senate Higher Education Finance and Policy Committee, but is not yet scheduled for a hearing.

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About Kevin Featherly

Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former freelance writer who has covered politics, law, business, technology and popular culture for publications and websites in the Twin Cities and nationally since the mid-1990s.

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