August 10, 2020

Volume X, Number 223

August 07, 2020

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Minnesota Supreme Court Affirms ‘Severe or Pervasive’ Standard of Harassing Conduct Claims

In a much-anticipated decision, the Minnesota Supreme Court on June 3, 2020, declined to abandon the requirement that harassing conduct be “severe or pervasive” to be actionable under the Minnesota Human Rights Act (MHRA). Nevertheless, the court “clarif[ied]” that the standard has evolved and that courts should not necessarily rely on the “high bar” that prior case law has required for a plaintiff to prove sexual harassment.


Minnesota courts evaluating hostile work environment cases under the MHRA frequently look to federal case law interpreting Title VII of the Civil Rights Act and, in particular, opinions of the Eighth Circuit Court of Appeals, for guidance. Those cases, looking to precedent from the Supreme Court of the United States, have long held that offending conduct must be severe or pervasive to be actionable. In many of the cases, the courts had held that seemingly egregious conduct did not meet the severe or pervasive standard. In light of the #MeToo movement and other societal changes, however, employee advocates have urged the Minnesota Legislature to statutorily abandon the rigorous “severe or pervasive” standard—thus far, to no avail.

In Kenneh v. Homeward Bound, Inc., those advocates joined an employee, who claimed she had been sexually harassed by a coworker, in urging the Minnesota Supreme Court to issue a decision that would have abandoned that standard. The court declined to do so, holding that the “severe or pervasive” standard remains the law, but stated that under that standard, as it has now evolved, alleged harassment is sufficiently severe or pervasive to state a claim under the MHRA if a reasonable person, considering the totality of the circumstances, would find the conduct objectively abusive or offensive.

The Minnesota Supreme Court’s Analysis

The Minnesota Supreme Court reversed a court of appeals’ decision that had affirmed summary judgment in favor of the defendant employer. In so doing, the Minnesota Supreme Court ruled that applying the federal courts’ Title VII severe-or-pervasive framework to MHRA claims “does not mean that the conclusions drawn by those courts in any particular circumstances bind Minnesota courts in the application of [the] state statute.” The Minnesota Supreme Court recognized that the MHRA is more expansive and protective than Title VII, and that the MHRA requires a different interpretation of “severe or pervasive.” The court emphasized that “each case in Minnesota state court must be considered on its facts, not on a purportedly analogous federal decision.”

The court also recognized that “the [severe-or-pervasive] standard must evolve to reflect changes in societal attitudes towards what is acceptable behavior in the workplace.” The court specifically criticized previous decisions in which courts had held that “‘boorish, chauvinistic, and decidedly immature’” behavior was inappropriate, but not actionable, and underscored that in today’s society, “reasonable people would likely not tolerate the type of workplace behavior that courts previously brushed aside.” Applying this evolved standard, the court found that based on the totality of the circumstances, including the frequency and the severity of the alleged conduct and comments, the employee in this case had presented sufficient evidence for a reasonable jury to decide the alleged behavior was sufficiently severe or pervasive to create a hostile work environment, in violation of the MHRA, thus precluding summary judgment.

Key Takeaways

Even though this case was very fact-specific, and the Minnesota Supreme Court declined to explicitly abandon the “severe or pervasive” standard, the decision clearly erodes “the high bar” prior courts had set for sexual harassment claims under the MHRA. Employers faced with internal harassment complaints, or sexual harassment lawsuits, may wish to reevaluate their strategies for responding to such issues, to keep pace with both evolving societal expectations and the law.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 161


About this Author

Molly E. Nephew Employment Attorney Ogletree Deakins Minneapolis, MN

Molly is an associate in the Minneapolis office of Ogletree Deakins. Molly graduated cum laude from Hamline University School of Law, where she also earned her Dean’s List honors and a certificate from the Dispute Resolution Institute that recognized her studies in alternative dispute resolution. While in law school, Molly was an Associate Editor of the Hamline Law Review, received the CALI Excellence Award in Negotiation, and placed in the Top 20 of the 2015 International Chamber of Commerce Mediation Competition in Paris, France. Molly received her undergraduate degree...

Andrew E. Tanick, Ogletree Deakins, severance negotiations lawyer, employment policies attorney

Andy Tanick has over 25 years of experience defending employment claims and helping employers develop effective policies and avoid litigation. He advises businesses of all sizes on issues such as non-compete agreements, severance negotiations, and employment policies and practices, and has successfully defended cases throughout the country in areas such as discrimination, retaliation and harassment. Andy’s litigation practice also includes his defense of disability access lawsuits under Title III of the ADA and the Minnesota Human Rights Act, ranging from defending owners of restaurants and office buildings in increasingly common “drive-by” litigation to service animal litigation.