Employer Alert: Minnesota Supreme Court Affirms the ‘Severe or Pervasive’ Standard in Workplace Harassment but Indicates Standard Must Evolve To Reflect Changes in ‘Societal Attitudes’

On June 3, 2020, the Minnesota Supreme Court in Kenneh v. Homeward Bound, Inc., affirmed the “severe or pervasive” standard, which employees must establish in workplace harassment or hostile work environment cases under the Minnesota Human Rights Act (MHRA). This standard has been used and applied in Minnesota under the MHRA for over 30 years; however, this ruling takes the analysis of cases under the standard a step further.

In affirming the standard, the Court noted that “[f]or the severe-or-pervasive standard to remain useful in Minnesota, the standard must evolve to reflect changes in societal attitudes towards what is acceptable behavior in the workplace.” Moreover, a holistic or totality of the circumstances approach should be used by lower courts and juries in each case and evaluate each case on its own set of facts, rather than analogizing with previous cases. In other words, there is no set rubric any case will be judged against.

The Court went on to articulate that “[a] single, severe incident” may support a claim for relief in certain circumstances whereas in others, a single passive incident may not rise to the level of “severe or pervasive” when considered in isolation. However, when considered as a whole (totality of the circumstances), those singular passive incidents may produce an objectively hostile environment.

In Kenneh, employee/plaintiff Assata Kenneh sued her employer, Homeward Bound, Inc., alleging her male coworker created a hostile work environment by repeatedly making sexually suggestive comments and gestures towards her within a four month period. This behavior persisted even after Kenneh reported the unwelcomed behavior to employer, and also after the coworker underwent sexual harassment training. The lower court granted summary judgment in favor of Homeward Bound, after concluding that Kenneh failed to allege conduct sufficiently severe or pervasive to support a claim for sexual harassment. In reversing the lower court’s decision on this issue, Minnesota Supreme Court cautioned lower courts on taking the issue away from juries and expressed that, “whether [an] alleged harassment [is] sufficiently severe or pervasive as to create a hostile work environment is generally a question of fact for the jury.” This ruling from the Supreme Court essentially guarantees similar cases are more than likely going to trial. So, what does this mean for employers?

While it may become more difficult for employers to prevail on summary judgment in sexual harassment or hostile work environment case, there are steps employer can take to ensure these types of claims do not occur in their workplace or at the very least, minimize the chances. Employers need to reevaluate not only their workplace policies, but their workplace culture as a whole, while constantly evolving with society. This calls for progressive and evolving workplace policies. A few suggestions for employers to consider include the following:

  • Frequent training of employees on what is and is not acceptable in the workplace – keeping in mind the technological aspect of today’s society (events that take place on social media platforms during working hours or at work sponsored events may be problematic);
  • Develop a clear and progressive reporting system for employees to report any harassment or unacceptable behavior, in addition to creating an atmosphere where employees are encouraged to report;
  • Conduct swift but thorough investigations of any complaints (regardless of severity) and take corrective actions when appropriate.

This ruling effectively put employers on notice. However, employers open to evolving with society position themselves to identify issues, investigate and resolve them quickly. This creates not only a safe and welcoming work environment for employees, but a business that would reduce the prospect of harassment and hostile workplace litigation.