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Lawmakers unveil proposal to redefine what sexual harassment means in Minnesota

MinnPost photo by Corey Anderson
The #MeToo movement has put a focus on the culture of sexual harassment in state politics and in workplaces across the state.

On paper, it looks like a simple change. But it could be the most significant update to Minnesota’s sexual harassments laws in years — one that could impact employees and employers in every industry across the state.

A proposal from House Republican Majority Leader Joyce Peppin would add a single new line to the Minnesota Human Rights Act’s definition of sexual harassment: “An intimidating, hostile, or offensive environment does not require the harassing conduct or communication to be severe or pervasive.”

That language would nullify in the state a decades-old “severe or pervasive” legal standard used by judges to determine if any sexual harassment case could be actionable — or even heard — in court. In all workplaces, employees have the opportunity to take a sexual harassment claim to court through the state’s human rights act or the federal Equal Employment Opportunity Commission. And many want to, especially if they feel they were harassed and unfairly terminated or didn’t agree with the findings of their human resources department.

But appeals in the courts often end before they even begin, Peppin said. “Lawyers talked about how they would have potential clients and they would outright tell their clients, ‘Well this isn’t enough, this is not going to even be a case,’” said Peppin, R-Rogers. “The severe or pervasive level makes it nearly impossible, if not impossible. We were pretty shocked by some of the cases that we read of harassing behavior that happened and there was no opportunity for someone to have their day in court.”

Courts have gone ‘off the rails’

The “severe and pervasive” standard came out of a 1986 United State Supreme Court case brought by Mechelle Vinson, who was hired as a teller-trainee at a bank in Washington, D.C. at 19 years old and said she then endured three years of sexual harassment and assault at the bank by her supervisor, who she said coerced her into having sex, made demands for sexual favors at work, exposed himself to her in the office and raped her on several occasions. She argued such harassment created a hostile working environment and a form of unlawful discrimination under Title VII of the Civil Rights Act.

It marked the first time a sexual harassment case made it all the way to the nation’s highest court, and ultimately, the justices ruled that sexual harassment was an illegal form of discrimination. But the ruling also established the “severe or pervasive” standard, which required the conduct to be so severe that it affected the conditions of the victim’s employment and created a hostile working environment.

Over the years, a clear definition of that standard never really emerged, and federal judges — particularly in the 8th Circuit Court of Appeals — applied it so narrowly that it made it nearly impossible to even get a sexual harassment complaint to the courts, said Sheila Engelmeier, an employment attorney with more than 30 years experience. She listed the kinds of behavior that could be rejected by federal courts by their reading of severe or pervasive standards: peeking in a peep hole while someone is going to the bathroom more than a dozen times, grabbing a woman’s breasts, flashing body parts or even asking someone to perform oral sex does not meet the standard, she said.

“The federal courts in our jurisdiction have essentially gone off the rails on defining what is enough to be severe or pervasive under federal law,” she said. 

Now, more than 30 years after the Supreme Court case, some judges have asked for more clarity on the issue, even as they reject cases under the severe or pervasive standard.

Last December, a woman tried to sue her employer, non profit Homeward Bound Inc., after she said a coworker repeatedly called her “beautiful” and “sexy” and commented on her appearance. One day he told her he would “eat her” because he likes to “eat women.” She brought the issue to her boss but an investigation found her claims “inconclusive.” She ultimately resigned because she said her employer did not allow her the flexibility to work away from the male employee harassing her.

Judge Mel Dickstein

In his ruling, Hennepin County District Court Judge Mel Dickstein admonished the behavior of her former co-worker but said he could not grant a hearing for her case because it did not meet the legal standard. “Our courts need to revisit the issue of what facts constitute those ‘sufficiently severe or pervasive [acts],’” Dickstein said. “Cases which emanate from the 1980’s, 1990’s, or even the first decade of the present millennium no longer accurately reflect conduct that alters the conditions of a victim’s employment and creates an abusive working environment. Times change, and with them so too do the standards of conduct.”

“It is not a leap to say that gone are the days when men can use the workplace to further their prurient interests,” he added. “Unwanted sexual advances, belittling sexual banter, touching, and mocking sexual language are no longer viewed as merely boorish, obnoxious, chauvinistic, or immature—they should be actionable.”

Too late to get done in 2018? 

The debate over sexual harassment in the workplace became a political issue after more than three dozen women accused Hollywood producer Harvey Weinstein of sexual harassment and assault. In the wake of those allegations, women and men — using the hashtag #MeToo — started telling their stories of harassment by people in positions in power, and state politics were not immune. In Minnesota, allegations of sexual harassment have already toppled two state legislators and one U.S. senator, all of whom resigned from their positions in the last six months.

The #MeToo movement has put a focus on the culture of sexual harassment in state politics and in workplaces across the state. Peppin, who chairs a House subcommittee on workplace safety, said at first she didn’t understand why women were accusing Weinstein of harassment in the media instead of taking him to court. But after weeks of testimony from legal experts in the committee, she realized why: It was nearly impossible for them to do so. “In many cases, it was, well this didn’t happen 10 times so it’s not pervasive enough,” Peppin said. “In my opinion, if something is really horrible and horrific and it happened one time, that is enough. It shouldn't have to happen 10 times for it to be able to bring forward a case.”

Majority Leader Joyce Peppin
Majority Leader Joyce Peppin

Peppin plans to introduce her bill on Monday, and she’s gained support from several House Democrats. She’s also found a co-sponsor in Sen. Karin Housley, R-St. Mary’s Point. Housley said she knows it's late in an already short legislative session, but she thinks it’s important to take an action this year. If the proposal passes, Minnesota would be the first state in the nation to allow judges to look beyond the “severe or pervasive” standard.

“People expect us to get something done when we’re at the Capitol,” said Housley, who is running for Franken’s old U.S. Senate seat against Sen. Tina Smith. “This would really let them know that their voices were heard.”

Opposition to the bill is expected, particularly from the business community, where some fear eliminating the standard could open up employers in the state to a bevy of new sexual harassment lawsuits. After the 1986 Supreme Court case, sexual harassment legal claims filed with the EEOC rose from about 10 per year to more 624 in 1987. Claims grew even more in the 1990s after the highly publicized Anita Hill hearings, at which the law professor accused Supreme Court Justice Clarence Thomas of sexual harassing her while they were colleagues in government.

But Peppin said her bill would not be retroactive to old cases, and it simply gives the courts the option to use their judgement to decide of a case rises to the state’s own definition of sexual harassment. “We don't know what the courts are going to do,” she said. “We have to have some faith that the courts are going to use judgement.”

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Comments (6)

Does She Have the Votes?

Does she have the votes to do this or is it a political maneuver for her run for Al Franken's former seat?

Is the proposed new standard good enough?

When it comes to theft, the crime is graded on several factors. How harmful, how many times it occurred and the history of the offender with other victims. The same clarity should apply to men who steal the feeling of security from women. Let me illustrate.

First if either party is married, the penalty should be more severe. If people are single, it is appropriate for a man or a women to show interest. If it is not welcome, this should be communicated and any flirtation stop. A lot of good marriages start in the office, and I don’t think we want to immediately jump to charging harassment.

Second, is this a first time thing, or has the person (most often but not always a guy) persisted after hearing stop repeatedly or with different victims?

Third, are threats and coercion used? Consent is not possible once coercion is applied. This is where the employee disciplinary process should start.

Fourth, is the offense assault? If so, that should never not end in a police referral. Handling that internally harms the victim a second hand, as it is too easy to be influence by the power of the individual or the desire to protect the image of the organization.

Fifth, if the charge is not substantiated, that in itself say nothing out the honesty of the person making the allegation. That they were lying needs to be proven beyond a reasonable doubt.

Of course, there are more considerations than that. Harassment of a children is worse than an adult. Sexual harassment of a same sex victim is something most people would consider worse - or maybe not?

I support an effort to change the standard to make it less intimidating to make a complaint, but object to tightening things up using a hammer rather than a wrench. If we are too lenient with the worst offenders to avoid excessive punishment, that is the result of “one size fits all” thinking.

Need to eliminate the Statute of Limitations

Since sexual harassment permanently alters the victim's life there should be no statute of limitations. Perpetrators sh0uld never get off the hook by a calendar. The damage is too great.

What about Capitol harassment?

While the change to the legal standard sounds like a good, long-overdue idea, I'm confused. I may have missed something, but while reading this piece it wasn't apparent what this proposed legislation has to do with addressing or fixing the sexual harassment problem at the Capitol that was the reason it was important for the Legislature to, as Karin Housley put it, "get something done":

"People expect us to get something done when we're at the Capitol . . . This would really let them know that their voices were heard."

Voices heard? Really?

As it was explained in Ms Bierschbach's March 8th article, "Cornish investigation highlights difficulty of dealing with sexual harassment complaints against Minnesota lawmakers":

"Everyone interviewed in the investigation [conducted by employment firm NeuVest], according to the publicly released takeaways, noted the challenges in enforcing the House’s sexual harassment policy when the alleged harasser is an elected official. According to the policy, staff members can be reprimanded, suspended or even fired, but complaints against elected officials must be handled by leadership. Even then, if a claim is substantiated, there are few options to punish a legislator, other than stripping them of some leadership duties. A member of the House or Senate cannot be forced to resign but could face an ethics committee process and a vote of expulsion, which takes a two-thirds majority their respective chamber."

www.minnpost.com/politics-policy/2018/03/cornish-investigation-highlight...

Maybe Joyce Peppin's proposal is a separate, or "standalone," proposal that may be related to some aspects of the problem at the Capitol. But if it's intended as anything approaching a comprehensive solution to the kind of problems mentioned above -- the thing those Minnesotans concerned about this issue mean when they say they want legislators to get something done -- I don't see how it would do that.

How would it help reduce the "challenges in enforcing the House's sexual harassment policy when the alleged harasser is an elected official"?

How would it change or improve things related to "staff members being reprimanded, suspended or even fired, but complaints against elected officials being handled by leadership"?

What would it do to change the existing policy / reality that gives legislators little more than a ho hum slap on the wrist: "Even then, if a claim is substantiated, there are few options to punish a legislator"?

The subject came up three weeks ago in another of Ms Bierschbach's articles, "The five issues likely to dominate the rest of the 2018 legislative session":

"Sexual harassment . . . many assumed the debate over how to fix the Capitol workplace culture would dominate the 2018 session. But there have been no votes or major proposals put forward yet this session, prompting Democrats late last week to try to force a vote on a bill to establish a task force of outside experts to look at sexual harassment in politics.

" 'Since we are clearly not able to do this work in a timely fashion, it’s time to call on outside experts to assist us,' said DFL House Minority Leader Melissa Hortman, who brought up the motion to force a vote."

www.minnpost.com/politics-policy/2018/04/five-issues-likely-dominate-res...

If I'm not seeing the ways in which Ms Peppin's proposal directly addresses everyone's primary concerns related to sexual harassment at the Capitol, please let me know.

But if it doesn't -- and there hasn't been some other form of legislation proposed -- it looks like House and Senate leaders don't have any interest in changing the status quo that, essentially, leaves most people working at or visiting the Capitol with the same, all but non-existent, recourse they've always had.

And, importantly, if that's the case, this year's non-action by (Republican) "leadership" appears to leave all decisions about any legislator's possible or actual sexual harassment in "leadership" hands.

And, if that's the case, it's likely a lot of Minnesota voters would like to know what this year's candidates views are on what to actually do (as in, "People expect us to get something done when we're at the Capitol") about sexual harassment at the Capitol and, for those running as incumbents, why they didn't do anything about it this year.

RE: Sexual Harassment Allegations found Not Guilty; EEOC Stats

This note follows an entry where I forgot to add an EEOC statistical link, and is not meant to undermine progress being made toward putting an end to sexual harassment or rape. However, in most documents and articles in both search engines and media presentations, the myth is that women are the only ones who are sexually harassed and raped.

The following link provides information telling that from 2010 through 2017, U.S. EEOC found, in 2010 50% of people accused of sexual harassment "not guilty" of sexual harassment. By the end of 2017, that "Not guilty" finding rose to 56%.:

https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment.cfm

It is important to note that our state and nation is made up of many cultures, both social, political, and religious, which define humility and healthy conduct in many different ways. As one who lived in Europe for a year, and came back and associated with both older and younger European immigrants and graduate students; and as one who has also lived among people with very strict rules on the appropriate nature of various kinds of comments and dress to underscore both humility, decency, and healthy norms of social and sensual behavior, I have a view that many may not have taken time to realize the varying cultures and norms around us, and learned to effectively, confidently, and firmly -- even to the point of using effective physical actions to abruptly end another person's violation of our psychical, spiritual, and intellectual sovereignty and women and men.

As one who has devoted my life to social sciences and healthy and accepting and changing sexuality norms, and have studied gender identification training and norms, as well as INTERPOL, federal, and local law enforcement's efforts to end the sexual and other vocational slavery of women, children and men, I believe I am qualified to share an educated view, as a trained social scientist. During the past 52-years of my life, since moving into University of Minnesota Saint Paul camps Commonwealth Terrace Family Housing during the period that my dad was studying law, which led to him becoming a highly respected attorney and business adviser in the metro and state region, I have lived around people from all continents and regions, and sexuality and many world cultures. With this, I have developed a concern for the well-being of people from all cultural, religious, political, affectional and medical condition backgrounds.

Data from government sources, found on the Internet, show a growing number of men who are complaining about sexual harassment by women in the workplace and academic communities. Recent figures showed that men comprised 16% of the number of people filing complaints about female coworkers and supervisors as being sexually abusive.

Counselors from several Minnesota and metro Minnesota domestic violence hotlines, as well as my therapist, who is a Licensed Marriage and Family Therapist in Minnesota with a practice dating back fifty years, and who graduated from University of Minnesota Department of Psychology during a period when that department was internationally known for its excellence in pioneering and teaching behavioral sciences and psychology, all indicated in recent interviews that men are nearly equally raped by women as men are raping women.

My concerns are that our society is becoming too oriented toward legalistic approaches to punishing people thought to be abusers or harassers, instead of the Norwegian national ethic toward rehabilitating people. Please note that the Norwegian community in northern Europe has long been considered as among the most happy and peaceful communities in the world, and among the wealthiest and most educated and healthy, per capita.

I am also concerned about the prevalence of men being removed from positions in society, or feeling forced out of their professions and livelihood based merely on allegations. Our U.S. Constitution's Bill of Rights, in our Fifth Amendment, provides our right to not be found guilty on the basis of association, and to be considered innocent until proven guilty; and my view is that the prevalence of news about men who have been alleged, but not found guilty by an objective court or by highly ethical women and men on EEO AA judicial bodies in corporations, institutions of higher education, or by a lawful and neutral courts, all have led to far more complaints, as noted in EEOC statistics, than what is reasonable.

I believe a healthy society is one based on intelligent, sensitive, forthright, and confident communications between parties who are willing to state their objections and requests for one person honoring another person's boundaries; and not further allowing the standards of free speech and action to be so tightened that we can not feel comfortable around members of one or another gender or sexuality for fear of being accused due to unintentionally provocative comments or physical actions, as a representative of the Sons of Norway fraternal organization recently indicated has been a problem for people from that culture, and where I spent a year of my life.

The use of sexual harassment as a retaliatory ploy to get rid of an unpopular person, or one who has lawfully and ethically acted to stop illegal activity, such as theft from corporate property sites, is known. As such regardless of our sensitivity to actions or words, I believe we should also move toward vigilance toward parties who were not harmed in any substantial or significant fashion. As our late and eminent Minnesota Governor Wendell Anderson told me, a young man who approached in on Nicollet Mall in 1985, with a request for wisdom on how to succeed in business and politics, his response was "Develop a thick skin and a sense of humor."

A comment or touch which, in one ethnic culture, may be very typical and accepted by most members of that society, but which, in another society or by a very introverted or emotionally scarred person, is not at all acceptable reason for loss of time, income, access to public accommodations or work and professional development is not, in my thinking, acceptable. Again, honesty, straightforward personal request to cease an action or type of comment, is by far healthier and can lead to stronger relations and respect and trust in any given commercial, academic, industrial or social environment..

As a man who was raped by a feminist and highly educated Costa Rican former girlfriend while I was sleeping, in 1986, when I was 24-years old, I found the experience to be horrifically frightening to wake up to, and which destroyed the trust we had developed between one another as former Macalester College alumni and then, current University of Minnesota students. While I did not file charges against her, and a year later met with her before she moved from Minneapolis to South Florida for her important career as a civic and medical worker, I have become far more conservative in my social mannerisms, and less interested in developing my sexuality as a healthy part of my personality.

So, please know that my views are least of all misogynistic, and more inclined to open another part of this discussion to redefining what we, as a multi-ethnic society, with people on the broad spectrum of neural-typical health to those who may be neural-atypical, should work toward in terms of defining our movements toward stately, professional, social, sensual, and sexual conduct; and as our global society is made up of over seven-billion people of varying degrees of intelligence, maturity, insight, training, ability to accept others, and able to be merciful and forgiving of others, and with an understanding of our own abilities and insight through firm, frank, and friendly communication, to maturely and resolutely assist those who would be considered a perpetrator toward becoming more sensitive and enlightened and disciplined as an actor on the stage of cross gender, and same gender professional, social, sensual, and sexual relations.

None of my standards are accepting of repeated intrusions, known acts of what is thought to be harassing to one person, but which may not be thought of as harassing, discomforting or disquieting to another person of any gender or transgender, or sexuality types; nor am I interested in protecting women or men who are either sober or under the influence of a controlled substance or intoxicant who sexually violated the most intimate parts of another person's body without their consent or willingness to cease an action upon knowing of their discomfort or disquieting nature of an action by a person with sensitivities.

This EEOC Data was intended in my earlier note.

We need less legalistic and informal guilty findings about sexual harassment and better training on firm, frank, forthright, and confident conflict resolution.

The move by the Republican female legislator inherently encourages less mature and confident communication between people of various levels of maturity, emotional stability and strengths, and spiritual and philosophic teachings. Norway has a far better model for professional, social, sensual, and sexual communications than the U.S., and that nation rates consistently higher in overall happiness, formal education, humanism, and wealth per capita.

Here is the most recent data on Guilty and Not Guilty Findings in EEOC data from 2010-2017.

https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm