Minnesota lawmakers convened the 2018 legislative session with a promise to tackle the issues of sexual harassment in the workplace.
That push started, as these things often do, with legislators’ own workplace, the Minnesota State Capitol. Last November, at the height of the #MeToo movement, multiple women accused two state lawmakers of repeated sexual harassment. Those lawmakers, DFL Sen. Dan Schoen and Republican Rep. Tony Cornish, resigned at the end of last year.
In the aftermath of the scandal, leaders began digging into internal state and legislative sexual harassment policies, but the conversation quickly broadened to how to address the issue at workplaces across the state. Even as that was happening, a third state legislator, Rep. Rod Hamilton, R-Mountain Lake, is facing allegations of sexual harassment and an internal investigation into his behavior.
Now, with just more than a week left to go in the 2018 session, plenty of ideas have been proposed — from creating a task force and a new state office charged with handling harassment investigations to a first-in-the-nation proposal to eliminate a stringent legal standard that’s prevented many sexual harassment legal cases from moving forward. But what actually gets accomplished this year remains to be seen.
Here’s a breakdown of the major proposals introduced to deal with sexual harassment in the workplace and where they stand as lawmakers face a May 21 deadline to adjourn the session.
Severe and pervasive legal standard
The proposed change with the biggest potential reach is actually the simplest, at least on paper. A bill 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 straightforward addition would, in effect, nullify the decades-old “severe or pervasive” legal standard used in court cases. That standard has been interpreted by judges narrowly to mean behavior so prevalent and repeated to create a hostile work environment, and it’s effectively meant that most sexual harassment lawsuits don’t see their day in court.
Peppin wants to change that, but her proposal has run into significant pushback from the business community and local governments, which argue the change could open up a flood of new sexual harassment lawsuits that will become a financial burden. Those concerns have, at least for now, derailed a similar proposal in the Senate authored by Sen. Karin Housley, R-St. Mary’s Point.
But House members voted overwhelmingly to include the language in the chamber’s public safety budget bill, meaning it will be part of the session’s final negotiations. For her part, Peppin is still working to try and find language that could potentially quell some concerns, including putting in some “guardrails” that would still eliminate the “severe or pervasive” language without discarding other standards the courts use.
“It’s still alive on the House side,” Peppin said. “I’m still working on it. I have some language that I think addresses the concerns of many of the groups. Whether they like it or not, I can’t guarantee, but I’m willing to look at some of these issues and we have time address them.”
Prohibiting non-disclosure agreements in sexual harassment settlements
While the “severe or pervasive” standard is running into roadblocks in the Senate, another proposal dealing with sexual harassment settlements in the Legislature is stalled in the House.
The bill, authored by Sen. Carla Nelson, R-Rochester, would require annual reports of all payments made with taxpayer dollars related to employee misconduct in the Legislature. The proposal would also prohibit the state from requiring non-disclosure agreements with any complainant in the case of a settlement. It would keep the name of the complainant private, but in some cases, it would allow them to know whether their allegations were substantiated in an investigation or if they led to any kind of disciplinary action.
Nelson said she got the idea for the proposal from cases in Washington, D.C. and in other statehouses across the nation. “It occurred to me that if we want to change behavior, we have to quit sweeping these things under the rug, and that’s exactly what’s been happening for years,” she said. Yet the bill hasn’t moved through major committees in the House, even if the bill’s author, Rep. Sarah Anderson, R-Plymouth, said it’s still in play for the final negotiations of the session.
Internal House and Senate policies
The allegations against both Schoen and Cornish revealed major problems with the legislative system of investigating and disciplining legislators. It’s particularly difficult, for example, to punish a sitting legislator for serious, substantiated allegations of sexual harassment, because they hold election certificates and can’t be fired.
It also became clear that the legislative policies did nothing to address harassment of or by a third party — lobbyists, vendors, citizens or reporters — who are in the Capitol building regularly but aren’t employed by the Legislature. When session began, the House and Senate sexual harassment policies hadn’t been updated in more than a decade.
After months of meeting, a House Rules Subcommittee drafted a number of changes to their internal policy, including adding tougher language on retaliation, new requirements to report claims to leaders in both political parties and enabling staff to bring in outside investigators when necessary. The new policy also enables human resources to investigate claims brought by third parties. Those changes were immediately adopted in the House, but the Senate has been moving slower on the issue. The the upper chamber has had no public meetings on the issue, but Senate Majority Leader Paul Gazelka said senators are meeting privately and will complete a revamp of the chamber’s sexual harassment policy sometime after session adjourns.
“We have three Republican and three Democrat senators all working on it and all think we’re doing good work on it,” Gazelka said. “That will be a significant shift.”
Sexual harassment task force
Shortly after the first allegations of sexual harassment emerged last year, several of the women who told their stories were calling for action. Rep. Erin Maye Quade, DFL-Apple Valley, and former DFL House candidate Lindsey Port requested the governor and legislators establish a task force on sexual harassment, which would be made up of employment law and other experts who would draft recommendations for lawmakers on how to change legislative policies. The bill had a hearing in a subcommittee on workplace safety, but it didn’t move beyond that, even after an attempt to bring it up for a full vote on the House floor.
“I had been hopeful the Republican majority would take me — a colleague of theirs who came forward about harassment that I experienced as a member of this legislature — and my request for an outside task force seriously,” said Maye Quade, who went public with her experiences of harassment from both Schoen and Cornish. “Clearly they didn’t take my suggestion, and perhaps my experience, seriously.”
As part of the House changes to its internal policy, the chamber did pass a resolution to allow lawmakers to continue meeting and discussing the issue of harassment after session adjourns. On the agenda for that task force: create an anonymous hotline and email address to collect reports of harassment; develop and administer a “community survey” on harassment and discrimination in the House; create a public web page to list current harassment policies and provide a list of ways to report potential harassment; and discuss how often legislators should undergo sexual harassment training.
State agency sexual harassment office
The Legislature is not the only branch of government looking closely at its own practices. Shortly after the first allegations emerged, Gov. Mark Dayton called on for a full review of how state agencies handle sexual harassment cases across as scattered and massive bureaucracy that includes more than two dozen agencies.
They found that there were 266 sexual harassment complaints in state agencies since 2011, 135 of which resulted in some kind of reprimand, according the a review of state agency complaints. Since the beginning of 2012, the state has also paid out a total of nearly $710,000 in seven taxpayer-funded settlements, either as part of court cases or mediation related to sexual harassment complaints.
More importantly, however, the state found that despite there being a statewide policy that covers all agencies, the review found some agencies were still following their own, separate rules for investigating complaints, and not every state worker had recently received training on sexual harassment in the workplace.
Dayton asked lawmakers to fund a separate, administrative body within the executive branch that will be responsible for receiving all sexual harassment complaints, investigating them in a timely manner and providing more consistency in how they are handled. A total of $4 million for the office was included in the House’s state government finance budget bill and will be part of the final stages of negotiations. Dayton, however, may not like where the money comes from to pay for the new office: Republicans propose taking it from a reserve set up for the Vikings Stadium, which the governor has opposed in other instances this session.
U of M harassment reporting requirements
Looking beyond the Legislature to other major public institutions, lawmakers have also been considering ways to make the University of Minnesota more transparent in how it handles sexual harassment cases, especially after several high-profile cases garnered headlines and led to resignations in recent years.
Anderson introduced a bill that would require the University of Minnesota’s Board of Regents to submit an annual report to the chairs of higher education committees in the House and Senate on sexual assault or harassment incidents. Her proposal also required the board to create a process for accused university employees and victims to appeal findings of the university’s Office of Equal Opportunity and Affirmative Action. The measure also requires the EOAA office, at the conclusion of a sexual misconduct investigation, to provide notice to accused university employees and their victims of any appeal rights.
“I’m a U of M alum, and as a lawmaker it’s been frustrating to see what has happened at the university,” Anderson said. “I think it’s a great institution and we want to make sure it has a shining reputation. I think if there’s greater legislative oversight we can help to achieve that goal.”