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Minnesota Legislature

'A barrier to justice' — advocates push for change in state's definition of sexual harassment

A testifier talks about being sexually harassed at her workplace during Feb. 7 testimony before the House Judiciary Finance and Civil Law Division. Members approved HF10, sponsored by Rep. Kelly Moller, left, to amend the definition of “sexual harassment” i

Ami shared her story of sexual harassment Thursday.

Testifying before the House Judiciary Finance and Civil Law Division, she described how she was sexually harassed for more than year at a Twin Cities’ restaurant where she worked while attending law school.

The harassment occurred weekly and included repeated unwanted touching by two male customers, repeated sexually suggestive language and a confrontation in the restaurant’s parking lot that she feared would become an abduction.

Ami said her managers did nothing to protect her from the abusers, and instead insisted that she continue to serve the men.

Rep. Kelly Moeller presents HF10, to amend the definition of sexual harassment

“I was frightened every time they came into the restaurant,” she said. “The trauma that these men and my managers created was ever-present.”

When she finally went to court, her case was summarily dismissed because the judge determined that the men’s behavior did not meet the “severe or pervasive” legal standard the courts use, which is based on federal case law.

“That barrier to justice needs to be removed,” she said.

Sponsored by Rep. Kelly Moller (DFL-Shoreview), HF10 proposes to do just that by changing the definition of sexual harassment in the Minnesota Human Rights Act to clarify that sexually offensive behavior need not be “severe or pervasive” in order for it to be subject to litigation.

“This bill is necessary to ensure that workers are safe in their workplaces,” Moller said.

Approved 16-0 by the division, the bill was sent to the House Floor. There is no Senate companion.

Attorney Sheila Engelmeier cited several Minnesota legal cases where “common sense” would dictate actions rose to the level of sexual harassment. They included unwanted groping, unwanted kissing and a quid pro quo promise of workplace advancement in exchange for sexual favors.

Kathryn Nash spoke to the House Judiciary Finance and Civil Law Division Feb. 7 in opposition to HF10, which would amend the definition of “sexual harassment” in the Minnesota Human Rights Act. Photo by Paul Battaglia

Yet these were also summarily dismissed by judges, she said, because they did not rise to the “absurdly high” threshold of being severe or pervasive. Engelmeier said the bill is the best way to return to the original definition of sexual harassment as intended by legislators when the state act was adopted in 1982.

“The severe or pervasive test compromises the dignity of working people and violates our values as Minnesotans,” said Megan Peterson, executive director of Gender Justice. She said that fixing the problem of sexual harassment will require significant and difficult societal changes on many levels, “but this bill is one of the most meaningful and powerful solutions we have.”

Melissa Raphan, general counsel of the Minnesota Employment Law Council, voiced concerns about possible unintended consequences. “This proposed law will increase the amount of litigation, there’s just no question about that.” Businesses do not support this bill, she said, because the language is too subjective and vague and therefore “unworkable.”

Mike Hickey, state director of the National Federation of Independent Business, agrees with the intent of the bill, but is concerned about lowering the definition of sexual harassment too far. He said his organization represents many small businesses that can’t afford to carry liability insurance to defend against sexual harassment lawsuits.

Such defenses can commonly cost between $50,000 and $250,000, which could easily bankrupt many small businesses, Hickey said.

But Rep. Hodan Hassan (DFL-Mpls) is not concerned that businesses tolerating sexual harassment in the workplace might go bankrupt. “Small businesses need to teach boys to stop harassing women,” she said. “It’s time to act. It’s 2019. We cannot keep doing the same things and expect change.”

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