Minnesota should set a new legal bar for sex harassment suits

Published 8:15 am Thursday, May 17, 2018

Star Tribune

Distributed by Tribune Content Agency, LLC.

Minnesota victims of sexual harassment have waited long enough for reasonable access to relief from the courts. Republican state Senate leaders shouldn’t ask them to wait another year — or more — in hopes of soothing overwrought employer fears about a potential flood of lawsuits.

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Instead, the Senate should follow the principled leadership of House Majority Leader Joyce Peppin, R-Rogers. She is spearheading an effort to lower the legal bar for successful sexual harassment lawsuits brought under the state’s 1982 Human Rights Act. Her bill, attached to a larger measure in the House on a whopping 121-4 vote, would advise judges that, in this state, sexual harassment need not be “severe and pervasive” to be actionable.

The designers of that 1982 statute never intended to set the bar that high. The “severe and pervasive” test for sexual harassment lawsuits was set by the U.S. Supreme Court in 1986 and has been used by both state and federal courts since then. The result: Plaintiffs win very few sexual harassment cases.

Critics claim that if Minnesota strips away the “severe and pervasive” test, almost any conduct with a sexual overtone could be the basis for a suit. That argument does not give enough credit to the carefully crafted language in the 1982 statute. It defined sexual harassment as conduct that “has the purpose or effect of substantially interfering with an individual’s employment … or creating an intimidating, hostile, or offensive employment … environment,” or that is “used as a factor in decisions affecting that individual’s employment.”

That wording makes clear that more than telling a dirty joke or commenting on a co-worker’s appearance is needed to cross a legal line. Those words plus Minnesota’s case law before 1986 should give this state’s judges sufficient tools with which to keep frivolous lawsuits at bay.

Nevertheless, the state Senate is hesitating. Senate Majority Leader Paul Gazelka told an editorial writer he’s responding to “a growing consensus that we should wait” and study the matter between now and the 2019 session. “It is my commitment to continue to work on this issue. We’re not sweeping it under the carpet,” he said, adding that some widening of the path for legal relief for sexual harassment victims is his goal.

We don’t doubt Gazelka’s sincerity. But pressure from the employer community on their Republican allies to stick with the status quo likely won’t lessen as senators draw nearer to the end of their four-year terms in 2020. Already, that pressure is strong enough to inspire second thoughts in the Senate sponsor of Peppin’s measure — Sen. Karin Housley, R-St. Marys Point, a candidate for the U.S. Senate seat held by Democratic Sen. Tina Smith. Housley’s retreat from her earlier intention of acting this year to improve the law’s sexual harassment protection is bound to be noticed by her political rivals.

For those reasons and one more — it’s never too soon to stand for justice — we hope Senate Republicans will yet decide that this week is the right time to give sexual harassment complainants a fairer day in court.