The Minnesota legislature is considering making it easier for employees to prevail on hostile work environment claims.
To prevail on a hostile work environment claim, a plaintiff must establish that (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on membership in a protected group; (4) the harassment affected a term, condition or privilege of her employment; and (5) the employer knew of or should have known of the harassment and failed to take appropriate remedial action. Goins v. W. Group, 635 N.W.2d 717, 725 (Minn. 2001).
But currently, even if a plaintiff demonstrates discriminatory harassment, such conduct is not actionable unless it is “so severe or pervasive” as to “‘alter the conditions of the [plaintiff’s] employment and create an abusive working environment.’” Id.
The Minnesota House of Representatives has approved a bill removing the severe or pervasive requirement. (HF 10). The Senate Judiciary and Public Safety Finance and Policy Committee will have to approve the measure. It currently has a version of the bill before it. (SF 1307). Ultimately, the bill may be reviewed by multiple committees and then the full Senate will have to approve it. If the bills are not identical, they will go to a conference committee to make them identical. The measure enjoys broad bipartisan support in both houses. If finally approved, the bill will go to Governor Walz, who is expected to sign it.
The likely upshot of this change would be that harassment claims based upon hostile work environment are more likely to go to a jury. In a lawsuit, a defending employer can ask a court to enter judgment in its favor because a plaintiff has been unable to adduce evidence supporting her claim. The procedure is called “summary judgment,” and it is common in employment cases. A court can rule—without ever letting the case get to a jury—that the plaintiff cannot meet her burden. The severe or pervasive rule is most commonly an issue at the summary judgment stage of litigation. Therefore, the change may mean plaintiffs will have a greater chance of surviving summary judgment. Under the change, a plaintiff may be more likely to reach a jury. That will drive up the cost of defense and lead to more risk and larger settlements.