| On May 30, 2008, the Minnesota Supreme Court issued a significant decision regarding sexual harassment, and reminded us of the importance of good anti-harassment training and policies.The issue before the Court in Frieler v. Carlson Marketing Group, Inc., was relatively narrow: what standard should Minnesota courts apply in imposing liability on employers for harassment by a supervisor?In a lengthy decision by Justice Alan C. Page, the Court brought Minnesota law into alignment with federal law and clarified that a plaintiff alleging sexual harassment by a supervisor in Minnesota is not required to prove that the employer knew, or should have known, about the harassment and failed to take timely and appropriate action.The analysis does not end there, however. The key question in many of these cases will be whether the employee who was harassed also experienced some type of “tangible” employment action, such as a discharge, demotion or undesirable job reassignment. If there was a tangible action, then the employer will be automatically liable for the harassment. However, where there was no tangible employment action, the employer can defend itself by showing that it exercised reasonable care to prevent and correct any sexually harassing behavior (usually through the implementation of good policies and training) and that the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided.The other issue the Court addressed was how to determine whether the harasser was a supervisor, so as to impose this higher standard of liability, as opposed to simply a co-worker or peer. In federal court in Minnesota, the definition of a supervisor is a fairly narrow one: the harasser must have had the authority (whether exercised or not) to hire, fire, promote or reassign the employee to significantly different duties. The Minnesota Supreme Court, however, elected to apply a broader definition of supervisor. Under Minnesota law, the definition of a supervisor will also include someone who has the authority to recommend one of the decisions identified above, or who directs the employee’s daily work activities. In other words, it will now be easier for a plaintiff to establish that her harasser was a supervisor under Minnesota law than under federal law.
As a practical matter, the decision contains good news for both plaintiffs and employers. For plaintiffs, it will be easier to hold an employer liable for sexually harassing behavior by a supervisor where a tangible employment action was involved, and easier to establish that the harasser was a supervisor. For employers who implement good policies and training, on the other hand, it will be possible to defend against these types of claims where the harassment did not involve a discharge, demotion or reassignment. In the final analysis, this decision should remind all employers of the importance of putting into place good policies prohibiting all forms of harassment, and of providing training to all employees, especially supervisors, on avoiding and responding to workplace harassment. |
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