Sexual Harassment Update Sheila Engelmeier Frances Baillon MSBA

Sexual Harassment Update Sheila Engelmeier & Frances Baillon MSBA Labor & Employment Law Section February 16, 2018

Sexual harassment update: issues covered today § Defining sexual harassment § Who is a supervisor? § When is sexual harassment sufficiently “severe or pervasive”? § Recent case law regarding “severe or pervasive” harassment.

Defining sexual harassment

Statutory definition Minnesota Human Rights Act: § Unwelcome sexual advances, request for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature…when… § Submission to that conduct is made term of obtaining employment; § Submission to or rejection of that conduct or communication by an individual is used as a factor in decision affecting individual’s employment; § Conduct has the purpose or effect of substantially interfering with an individual’s employment. Minn. Stat. § 363 A. 03, Subd. 43

Statutory definition (cont’d) Title VII: § Title VII does not define “sexual harassment” but its prohibition against discrimination based on “sex” includes sex harassment. Meritor Sav. Bank, FSB v. Vinson, 47 U. S. 57 (1986). § In Meritor, the Supreme Court followed EEOC Guidance definition: § Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature; § Unreasonably interferes with work performance or creates intimidating, hostile or offensive environment

How courts define sexual harassment § Elements of sexual harassment claim: § Member of a protected class; § Subject to unwelcome harassment; § Harassment based on sex; § Harassment affected a term, condition or privilege of employment § Was the conduct “severe or pervasive” § Supervisor harassment: § Additional elements when the harasser is a supervisor

Supervisor as harasser § If harasser is employee’s supervisor and creates an actionable hostile environment culminating in tangible employment action: § Employer is vicariously liable § If harasser is supervisor and there is no tangible employment action or harasser is a co-worker: § Employer is liable if it knew or should have known and failed to take prompt remedial action. Frieler v. Carlson Marketing Group, 751 N. W. 2 d 558 (Minn. 2008)

Supervisor Actionable hostile environment/tangible employment action No tangible employment action Affirmative Defense Vicarious liability Employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior Employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by employer or to avoid harm

Who is a “supervisor”?

Federal standard § Faragher/Ellerth- did not directly decide issue but indicated “supervisors” usually have ability to take tangible employment actions: hiring, firing, set work schedules, supervise day-to-day work. § Eighth Circuit- (narrow view) must have power to take tangible employment action e. g. hire, fire, promote or reassign to significantly different duties. Weyers v. Lear Operations Corp. , 359 F. 3 d 1049 (8 th Cir. 2004). § EEOC- (more expansive) has authority to undertake or recommend tangible employment decisions affecting the employee, has authority to direct daily work activities. (EEOC 1999 Enforcement Guidance). § U. S. Supreme Court addressed this issue in Vance v. Ball State, 133 S. Ct. 2423 (2013).

Vance v. Ball State, 646 F. 3 d 461 (2011) § Seventh Circuit applies narrow view: § Supervisor is someone who “directly affects” terms, conditions of a plaintiff’s employment (including hire, fire, demote, promote); § Rejected EEOC standard; § Rejected argument that a supervisor is someone who could tell plaintiff what to do.

Vance v. Ball State, 133 S. Ct. 2423 (2013) § Supreme Court Affirms: § An employee is a “supervisor” for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim; § Rejected petitioner’s reliance on the meaning of “supervisor” in general usage; § Rejected petitioner’s reading of Faragher and Ellerth as supporting an expansive definition of “supervisor; ” § The framework the Court adopted in Faragher and Ellerth draws a sharp line between co-workers and supervisors; implies the authority to take tangible employment actions is the defining characteristic of a supervisor.

Minnesota standard § Minnesota Supreme Court adopted broader EEOC standard. Frieler, 751 N. W. 2 d at 56869. § There is heightened liability in these cases because a supervisor’s acts have greater power to alter the environment than acts of co-employees. § Significantly, the Court adopted this standard based on the broad and remedial nature of the MHRA. Id. at 573. § Minnesota Supreme Court has consistently held MHRA is to be liberally construed and provides broader protections than federal law.

MHRA provides broader protections § Minnesota Supreme Court consistently recognizes the MHRA provides broader, more liberal protections than federal law. § Carlson v. Ind. Sch. District No. , 623, 392 N. W. 2 d 216, 221 (Minn. 1986); § Cummings v. Koehnen, 568 N. W. 2 d 418, 423 n. 5 (Minn. 1997); § Hoover v. Norwest Private Mortg. Banking, 632 N. W. 2 d 534 (Minn. 2001); § Ray v. Miller Meester Advertising, Inc. , 684 N. W. 2 d 404 (Minn. 2004); § Frieler v. Carlson Marketing, 751 N. W. 2 d 558 (Minn. 2008); § Rasmussen, et al. v. Two Harbors Fish Company, 832 N. W. 2 d 790 (Minn. 2013).

Alter ego theory… § No affirmative defense is available when the harasser is “within that class of employer organization’s officials who may be treated as the organization’s proxy. ” Faragher v. City of Boca Raton, 524 U. S. 775, 789 (1998).

When is sexual harassment sufficiently “severe or pervasive”?

“Severe or pervasive” harassment § Factors to evaluate § Verbal or physical conduct; § Frequency; § Conduct hostile and patently offensive; § Whether others joined in perpetrating harassment; § Threatening, humiliating, embarrassing. § Standard of evaluating § Totality of circumstances; § “Reasonable person” standard; § Creates “an intimidating, hostile or offensive working environment” or interferes with performance.

Hypothetical § Female employee is propositioned by male employee during offsite meeting; § Male employee made employee work on his computer, which had a screen saver of a naked woman; § Male employee touched her hand; § Male employee kept a child’s pacifier that was shaped like a penis in his office; § Male employee asked female employee to type a document entitled “He-Men Women Hater’s Club” that included statements: “sperm has a right to live” “all great chiefs of the world are men. ”

Is it “severe or pervasive” under federal law? § Eighth Circuit § Panel in Duncan v. General Motors Corp. , 300 F. 3 d 928 (8 th Cir. 2002) held this conduct did not meet “severe or pervasive” standard.

Compare with…. § Eich v. Board of Regents, 350 F. 3 d 752 (8 th Cir. 2003). Finding the following conduct sufficiently severe or pervasive: Over seven years two male employees § Ran fingers through Plaintiff’s hair; § Rubbed her shoulders; § Brushed up against breasts; § Ran fingers up Plaintiff’s spine; § Told her she was pretty; § Asked her to run off with him; § Stood behind her and simulated sex acts, grabbed Plaintiff’s leg and looked down blouse.

See also… § Jenkins v. Univ. of Minn. , 838 F. 3 d 938 (8 th Cir. 2016) geographic isolation of the conduct is of paramount importance. Actions that might not rise to the level of “severe or pervasive” in the office (repeated advances, jokes, comments, innuendos, and suggestions of contact) take on a different character when the two people are stuck together 24 hours a day with no other people or means of escape. § Stewart v. Rise, Inc. , 791 F. 3 d 849 (8 th Cir. 2015) reversed summary judgment on a claim of hostile work environment. First case recognizing a claim of subordinate harassment of a supervisor.

See also… § Mehl v. Portaco, Inc. , 859 F. Supp. 2 d 1026 (D. Minn. 2012) distinguishing Duncan pointing out harassment was over three month period including repeated touching, sliding hand between her legs, touching breasts rubbing back and tapping her on bra strap. § Stanina v. Blandin Paper Co. , 2006 WL 2069203 (Jul. 26, 2006) distinguishing Duncan as mild touching and crass language versus ten year pattern of touching/grabbing breasts, starting rumors about sex relationships, display porn, disparaging comments about women. § Wright v. Rolette County, 417 F. 3 d 879 (8 th Cir. 2005) verbal harassment can create a hostile work environment.

Agency Interpretation § EEOC Guidance indicates it would not necessarily follow Duncan. § EEOC Guidance (1990) § Employee’s supervisor sexually touches employee, the Commission normally would find a violation; § Single, severe incident of harassment may be sufficient (e. g. harasser talked to employee about sexual activities and touched her in offensive manner while inside vehicle); § The more severe the harassment the less repetitive it need be; § Verbal harassment alone may be sufficient but verbal and physical conduct more likely to be violation.

Considerations when investigating sex harassment: § Who is the harasser(s)? § Who is being harassed? § What are their respective jobs? § What is employment environment/atmosphere? § Sexual harassment training provided? § Other complaints of sex harassment made (generally and specifically)?

Investigation considerations (cont’d) § When/where is harassment occurring; in front of others or in isolation; directed only at victim or others? § What is the quantity, context and nature of harassing comments? § What is the quantity, context and nature of physical conduct? § Evaluate credibility § Examine sequence and timing of events § Are there witnesses – to events or changes in behavior? § Did the employer know?

Minnesota Court of Appeals and Supreme Court: Recent case law regarding “severe or pervasive” harassment

Mooers v. City of Lake City, No. A 13 -21972014, 2014 WL 3023368, (Minn. Ct. App. July 7, 2014. § Facts: § Mooers was employed as a library administrator. § Allegations surfaced that she was having an affair with her boss, and § § § § committed fraud on her employment application, but the city council decided not to look into the allegations. Disciplined for a city credit card purchase that included alcohol and gratuities. Suspended for further problems with credit card billing. After two closed city council sessions, the council voted to terminate Mooers at an open session. Mooers served a complaint with several allegations, including sexual harassment under 42 U. S. C. § 1983. Allegation that the Mayor of Lake City made unwelcome sexual advances toward her beginning shortly after she started her job; and rejected the Mayor’s advances and was repelled by his conduct. The district court granted summary judgment to the Respondents. Holding: § The appellate court reversed, concluding that Mooers raised at least a genuine issue of material fact as to whether the Mayor’s conduct constituted sexual harassment under section 1983.

La. Monte v. Ind. Sch. Dist. #728, 814 N. W. 2 d 14 (Minn. 2012) § Facts: § Supervisor did not want women on his crew; § “Women have their place. You’ve got to keep them in their place; ” § Only place for women is the Kitchen and bedroom; ” § “There is a time and a place for women and Elk River High School is not the time or the place; ” § Women were segregated from men; § Women were told they could not talk unless on break and no talking to male employees; § Women had to check in for breaks. § Holding: § Conduct not severe or pervasive- offensive but infrequent, not severe or intimidating, no comment was severe or intimidating or physically threatening; did not interfere with job performance. § Conduct does not meet standard in federal decisions.

Rasmussen v. Two Harbors Fish Co. § Facts: § Owner/supervisor made sexual comments, asked questions of sexual nature, asked about sexual preferences, discussed detailed sexual dreams, discussed having sex with female employees, brought in pornographic magazine and movie, told employee to watch it and told employee she looked like woman in movie; § Touched employees including on buttocks and arms; § Called employees: “girlfriend”, “honey”, “beautiful”, “sexy. ” § Holding: § Court of appeals reversed and ordered judgment in favor of plaintiffs. § Supreme court remanded.

Harassment/Hostile Work Environment Analysis Was the conduct based on [protected trait]? Yes Was the conduct unwelcome? Yes Was the conduct hostile, intimidating, or offensive behavior that was sufficiently severe or pervasive as to alter the terms and conditions of employment? Yes Harasser was… Alter Ego Supervisor Coworker/Customer/Vendor? Employer is liable if: Vicarious Liability Did supervisor take tangible employment action? (1) It knew or should have known of the harassment; and (2) it failed to take timely and appropriate action Yes Employer is vicariously liable; affirmative defense not available No Employer is vicariously liable unless it establishes affirmative defense; (1) Employer acted to prevent and promptly correct harassment; and (2) Plaintiff unreasonably fails to report harassment.

Authors § Sheila Engelmeier- Over her 25+ years practicing law, Sheila gained extensive employment law experience and has handled the full panoply of employment litigation and counseling matters, from shareholder disputes and non-competes to allegations of discrimination or employee theft. Sheila speaks and writes regularly on many employment law topics, such as discrimination and harassment, as well as employers' obligations relating to such conduct when it occurs in connection with work. Sheila has developed and facilitated many training programs on a variety of workplace issues such as optimizing employee performance, diversity and inclusion, avoiding harassment and discrimination, managing employee leaves and dealing with the disabled worker, including development of the premier training tool, RESPECT EFFECTTM (www. respect-effect. com). Sheilae@e-ulaw. com 612 -4557720. § Frances Baillon practices exclusively on behalf of plaintiffs in the area of employment law. Ms. Baillon has litigated cases in state and federal court. She has argued cases before the Minnesota state and federal district courts, the Minnesota court of Appeals, the Minnesota Supreme Court and the Eighth Circuit Court of Appeals. She is a founding partner of Baillon Thome Jozwiak & Wanta and has been named a “Rising Star” on several occasions. fbaillon@baillonthome. com 612 -252 -3570.