Halunen & Associates

by Barbara L. Jones writing for Minnesota Lawyer

The legal standard that determines liability for sexual harassment is coming before the Minnesota Supreme Court ni a case recently accepted for review.

Frieler v. Carlson Marketing Group will potentially clear up some confusion and disagreement among lawyers by revisiting the proper standard for determining when alleged harassment creates a hostile working environment - an issue not before the Supreme Court since 2001 in Goins v. West Group.

In Frieler, a man allegedly assaulted a female coworker who was also a prospective subordinate after calling her into a private room to discuss work-related matters. Similar incidents allegedly occurred on three other occasions, after which the woman for the first time made a harassment complaint. An investigation ensue, and the man opted to quit. The woman subsequently left the company, and flied an action alleging a hostile work environment.

The Court of Appeals last July upheld a summary judgment for the employer, saying that the plaintiff did not meet the Goins test for proving sexual harassment based on a hostile working environment, which would require a showing that:

• The plaintiff is a member of a protected group;
• The plaintiff was subject to unwelcome harassment;
• The harassment was based on membership in a protected group;
• The harassment affected a term, condition or privilege of employment; and
• The employer knew or should have known of the harassment and failed to act.

The employer’s real or imputed knowledge was the center of dispute in Frieler. The Court of Appeals held that the plaintiff did not establish that the employer knew of the alleged harassment against her.

The Court of Appeals rejected the plaintiff’s claim that under the Minnesota Human Rights Act, she was no longer required to meet the knew/should have known standard. The MHRA was amended effective Aug. 1, 2001, to remove the employer’s knowledge requirement and failure-to-act provision from the definition of sexual harassment. However, Goins kept the requirement when it was handed down in November 2001.

Thus the issue before the Supreme Court may be the effect of the 2001 amendment to the MHRA.

“The [effect of the] amendment to the Human Rights Act will be hotly contested,” predicted Minneapolis Attorney Robert Boisvert Jr., who generally represents employers. The court may require a clearer legislative intention about employer liability before departing from its established common-law test, he said.

In Frieler, the alleged harassment was by a man who ultimately became Frieler’s boss, but may not have been in a supervisory role when the vents occurred. But the court didn’t reach that issue, and thus did not decide to apply the federal standard for vicarious liability by a supervisor, known as Faragher/Ellerth.

Minneapolis attorney Joni Thome, hwo represents the plaintiff in Frieler, said that the amendment to the MHRA was intended to bring Minnesota closer to Faragher/Ellerth and other federal law. But Minnesota has not adopted Faragher/Ellerth, which does not require knowledge or imputed knowledge when the actor is a supervisor. Whether the Supreme Court will take this opportunity to do so is a matter of discussion among lawyers.

“The case really sets up whether the court is going to follow Faragher/Ellerth or its long line of existing caselaw,” Boisvert said. “From an employer’s standpoint, the concern is that because there’s no knowledge requirement, employer’s are held liable for conduct they didn’t know about and couldn’t remedy. It is strict liability under Faragher/Ellerth. As a defense lawyer I worry about those employers that get stuck without getting a chance to fix the problem.”

Minneapolis employment attorney Laure Knocke said she is pleased that the Supreme Court has taken review of the case. Regardless of which standard the court opts to goes with, it will be good to have clarity as to what the standard is so that the employers will know what their liabilities are, she said.

Three Focus Areas

Minneapolis employment attorney Justin Cummins told Minnesota Lawyer that the Supreme Court should focus on three areas when ruling in Frieler:

• the plain meaning of the statute;
• the objectives and underlying policy of the MHRA; and
• practical realities

The plain language of the MHRA does not include any requirement of knowledge on the part of the employer, Cummings said. Additionally, the objectives and underlying policy of the MHRA is to prevent sexual harassment and hold accountable those with control over harassing behavior.

The practical realities are that objects of sexual harassment are reluctant to come forward because of the real or perceived lack of recourse and the potential for employer retaliation, Cummins said. The Supreme Court’s determination of how high to set the harassment standard should be informed by these “practical realities,” he said.

Boisvert said that to employers the best outcome is the test the court has been applying because that requires the plaintiff to show the employer knew or should have known and failed to act.

“It places on employees a burden to come forward and gives employers a chance to improve. A chance to fix problems is the best outcome,” he said.