Today’s blog entry is the first one that I am making on the Lexblog platform. This platform replaces my previous website and my previous blog site. All of my blog entries have been carried over. I think everyone will find this much more informative and faster. You will also have a much better idea of what is going on in my practice at a current time. For example, it is now much easier to find out what presentations I am making, new articles, etc.

 

The case of the day, Kenneh v. Homeward Bound Inc., decided by the MN Supreme Court on June 3, 2020, actually has nothing to do with disability. However, it has something to do with hostile work environment and the way such cases have been looked at in the past. I think it is worthwhile exploring because it is entirely possible that Minnesota may be starting something that will carry over to other states if not to the federal courts. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Kenneh began working for respondent Homeward Bound, Inc., a nonprofit organization that operates residential care facilities for people with disabilities, in 2014. Kenneh transitioned to working as a Program Resource Coordinator at the Brooklyn Park location in February 2016. Shortly after she started in this new position, she met the maintenance coordinator, Anthony Johnson. Because Johnson worked at multiple sites, he was not at the Brooklyn Park location every day. Kenneh alleges that Johnson engaged in multiple incidents of sexual harassment from approximately February until June 2016. On their first encounter, Johnson complimented Kenneh on her haircut. He asked her who had cut her hair and where she lived. Although Kenneh said that her cousin cut her hair, Johnson said that he would cut her hair, at her home or at his. Kenneh was alarmed by the idea that a person she had just met would invite her into his home. Not long after their first encounter, Johnson walked by Kenneh’s office and saw her struggling to open her desk drawer. He offered to help. As Kenneh started to move out of his way, he told her that she did not need to move because he “likes it pretty all day and all night.” He also told her he liked “beautiful women and beautiful legs.” Kenneh got out of her chair to avoid contact with him. While he was working on her desk, Johnson began talking to her in a seductive tone and licked his lips in a suggestive manner. On March 24, Johnson stopped by Kenneh’s office, blocking her door with his body. Kenneh made up an excuse to leave her office to avoid Johnson. She told him that she was going to buy something to drink from a nearby gas station. In what Kenneh viewed to be a sexually suggestive tone of voice, Johnson insisted on taking Kenneh to the onsite 5 vending machine. Kenneh complied. On their way back from the vending machine, Kenneh suggested that Johnson could take some of the cake left over from a party held earlier that day. Johnson turned to look at Kenneh, licked his lips, and said in a seductive tone, “I don’t eat any of this.” When Kenneh asked Johnson what he meant, he said, “I will eat you—I eat women.” Kenneh quickly walked past him and went back to her office alone. On March 31, Kenneh was buying gas when Johnson drove up alongside her car. He rolled down the window and asked Kenneh where she was going. Kenneh answered Johnson’s questions. When Kenneh pulled out of the gas station, she noticed Johnson left immediately after her, without putting gas in his car. Kenneh told her supervisor about Johnson’s comments and conduct the following day. Her supervisor was alarmed and asked Kenneh to make a written complaint. Kenneh’s written complaint stated Johnson had been very verbally inappropriate with her and identified three specific incidents of harassment, including the desk-repair incident, Johnson’s statement that he eats women, and that Johnson followed her to the gas station. Homeward Bound placed Johnson on paid leave pending an investigation. Human Resources personnel interviewed Kenneh and Johnson, at which time Kenneh also reported their first conversation about her hair. Johnson denied that each incident happened as alleged by Kenneh. On April 11, the Director of Human Resources met with Kenneh and informed her that the investigation was inconclusive. She assured Kenneh that Johnson would receive 6 additional sexual harassment training and would be instructed not to be alone with Kenneh. The Director sent Kenneh a letter the following week repeating what they had discussed. Neither Kenneh’s complaint nor Homeward Bound’s investigation stopped Johnson’s behavior. Instead, Johnson stopped by Kenneh’s office more frequently, blocking her door with his body. Whenever Johnson would see Kenneh, he would gesture with his tongue, simulating oral sex. He continued to call her “sexy,” “pretty,” or “beautiful” every time that he saw her, despite Kenneh’s requests for him to stop. Kenneh tried to ignore Johnson but he would stand in her doorway, watching her. When she turned toward the door and made eye contact with him, he simulated oral sex with his tongue. Kenneh complained to her supervisor about Johnson’s ongoing behavior on two more occasions to no avail. On June 1, Kenneh arrived late to work and was unprepared for a meeting. When her supervisor spoke with her about her attendance, Kenneh replied that she did not want to come to work because of Johnson. On June 29, Kenneh asked her supervisor if she could return to a flex-schedule position that would allow her to avoid interactions with Johnson. Homeward Bound denied her request for a transfer and terminated her employment. Kenneh brought an action against Homeward Bound, claiming violations of the Minnesota Human Rights Act, including a claim for sexual harassment. 1 Kenneh alleged 1 Kenneh also alleged that Homeward Bound had terminated her position in retaliation for her complaint to Human Resources. The district court granted summary judgment to Homeward Bound on the retaliation claim, concluding that Kenneh failed to establish a causal connection between her complaint and any adverse employment action. The court of appeals affirmed. Kenneh v. Homeward Bound, Inc., No. A18-0174, 7 that Johnson’s conduct created a hostile work environment. The district court granted summary judgment to Homeward Bound. Stressing “the high bar” that courts have set for sexual harassment claims based on a hostile work environment, the district court reluctantly determined that the conduct alleged did not meet the severe-or-pervasive standard for actionable sexual harassment. The district court found that “[s]ome of the conduct was boorish and obnoxious” and that the statement, “I will eat you. I eat women,” was “both objectively and subjectively unacceptable.” Nonetheless, the district court determined that the conduct, “however objectionable, does not constitute pervasive, hostile conduct that changes the terms of employment and exposes an employer to liability under the Minnesota Human Rights Act.”

 

II

Court’s Reasoning

 

  1. Unlike federal law, Minnesota law specifically defines sexual harassment by statute. That definition includes unwelcome sexual advances or communication of a sexual nature when that conduct or communication has the purposes effect of substantially interfering with an individual’s employment or creating an intimidating, hostile, or offensive employment environment.
  2. Plaintiff has not presented the court with a compelling reason to abandon the severe or pervasive standard because that standard reflects a common sense understanding that when it comes to altering the conditions of employment and creating an abusive working environment, the sexual harassment must be more than minor. That is, the work environment must be both objectively and subjectively offensive in that a reasonable person would find the environment hostile or abusive and the victim in fact perceived it to be so.
  3. Severe or pervasive framework decisions from title VII does not mean that conclusions drawn by those courts are mandatory on Minnesota courts with respect to Minnesota statutes.
  4. For the severe or pervasive standard to remain useful Minnesota, the standard must evolve to reflect changes in societal attitude towards what is acceptable behavior in the workplace.
  5. Some 30 years ago, the Minnesota Supreme Court said that the essence of the Human Rights Act is societal change and the redress of individual injury caused by discrimination as a means of achieving that goal.
  6. Today, reasonable people would likely not tolerate the type of workplace behavior courts previously brushed aside as an unsuccessful pursuit of the relationship.
  7. One of the avowed public policies of the Minnesota Human Rights Act is to foster the employment of all individuals in the state in accordance with their fullest capacities. In a hostile work environment, no employee can thrive.
  8. Determining whether actionable sex discrimination exists in a given case, means examining all the circumstances around the conduct alleged to constitute sexual harassment.
  9. Court should not carve the work environment into a series of discrete incidents and then measure the harm occurring in each episode. Instead, courts and juries- the factfinders- must consider the totality of the circumstances. The totality of the circumstances includes: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.
  10. Each case in Minnesota state court has to be considered on its facts and not on a purportedly analogized federal decision.
  11. A single severe incident can support a claim for relief.
  12. Pervasive incidents that may not be actionable when considered in isolation may yet produce an objectively hostile environment when considered as a whole.
  13. Course are cautioned against usurping the role of the jury when evaluating a claim on summary judgment. That is, summary judgment is a blunt instrument inappropriate when reasonable persons might draw different conclusions from the evidence presented.
  14. Whether the alleged harassment was sufficiently severe or pervasive so as to create a hostile work environment, is generally a question of fact for the jury.
  15. In order to remove such a question of fact from the jury on summary judgment, the court would have to determine that no reasonable jury could find the conduct at issue was severe or pervasive. If a reasonable person can find the alleged behavior objectively abusive or offensive, that claim survives summary judgment.
  16. On summary judgment, a court must accept the incidents as stated by the person not moving for summary judgment.
  17. Weighing the evidence in assessing credibility on summary judgment is error.

 

III

Thoughts/Takeaways

 

  1. Minnesota has thrown down a marker that it will not just slavishly follow title VII hostile work environment decisions.
  2. Minnesota has also said that they will not be a prisoner to history when it comes to hostile work environment claims because values of society change over time. What is a hostile work environment today is likely not the hostile work environment 30 years ago.
  3. The decision could have an impact on the statute of limitations because the Minnesota Supreme Court says that the totality of the circumstances must be considered and not each specific episode on its own. So, an argument is created that hostile work environment claims are continuing violation claims. As such, that could have a big impact on when the statute of limitations starts to run for these types of claims in Minnesota.
  4. I constantly read all kinds of cases involving summary judgments. In the world of federal litigation, summary judgment motion by the defense are automatic. Some courts seem to use summary judgment as a screening out tool to make sure that only cases a plaintiff has a good chance of winning get to the jury. The Minnesota Supreme Court is having none of it. That is in Minnesota, no reasonable jury would have to be able to find that the conduct was severe or pervasive in order for the “blunt tool,” of summary judgment to be granted by a court. In today’s world, that is a very high bar. The Minnesota Supreme Court also said that weighing the evidence in assessing credibility on summary judgment is error. Weighing the evidence in assessing credibility on summary judgment is something many courts often do. In Minnesota, they won’t allow that anymore. One wonders if the success of summary judgment motions in Minnesota by the defense regardless of the type of case, will now go down after this decision.
  5. The Minnesota Supreme Court also said that for purposes of summary judgment one has to look at what is being said by the party not moving for summary judgment and not the party moving for summary judgment.
  6. One wonders whether other states will find what the Minnesota Supreme Court says about how to look at hostile work environment claims persuasive. The timing in light of what is going on today is certainly right. It may take longer for federal courts to be persuaded considering how federal judges are appointed.
  7. You see in the case law how if a reasonable jury cannot find severe or persuasive conduct, summary judgment can be granted. However, the Minnesota Supreme Court specifically uses the term, “no reasonable jury.” It also mentioned that summary judgment motions are a, “blunt tool.” Finally, the Minnesota Supreme Court says in this decision that hostile work environment claims must be viewed through today’s lens. Accordingly, meeting the summary judgment standard in Minnesota has probably just gotten a lot more difficult especially in light of the heightened sensitivity of the world of today.
  8. Justice McKieg, who wrote the decision, is the first Native American woman on the Minnesota Supreme Court.
  9. The decision was unanimous.
  10. I am not a licensed attorney in Minnesota, though I am in Georgia, Texas, and Illinois.
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Photo of William Goren William Goren

William Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a…

William Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.

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