Is Your Boss Inappropriate at Work?
Employees don’t have to endure a hostile work environment. Bosses don’t have a right to ask employees to do whatever they want. This article explains some of the protections available to employees and how good employers should treat their employees. This is meant to serve as a guide to employers as well as to educate employees on how to protect their rights.
Minnesota Human Rights Act
Under the Minnesota Human Rights Act (“MHRA”), it is an unfair employment practice for an employer to discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment, on the basis of the individual’s sex. Minn. Stat. § 363A.08, subd. 2(3) (2012). For purposes of sex discrimination, the term “discriminate” includes sexual harassment. Minn. Stat. § 363A.03, subd. 13 (2012). Further, “sexual harassment,” as defined in the MHRA, includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct of a sexual nature when:
- submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
- submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or,
- such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
Minn. Stat. § 363A.03, subd. 43 (2012). Subparts (1) and (2) are commonly referred to as “quid pro quo” sexual harassment. Subpart (3) is known as “hostile work environment.” See Frieler v. Carlson Marketing Group, Inc., 751 N.W.2d 558, 579-80 (Minn. 2008); Fore v. Heath Dimensions, Inc., 509 N.W.2d 557, 559-560 (Minn. Ct. app. 1993). The MHRA thus distinguishes between separate forms of actionable sexual harassment.
Gender discrimination claims under the MHRA are analyzed under the McDonnell–Douglas burden-shifting analysis. Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983). The McDonnell–Douglas analysis involves a three-step process.
First, an employee must demonstrate a prima facie case by a preponderance of the evidence. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101–02 (Minn. 1999). The specific elements of the plaintiff’s prima facie case must be modified for varying factual patterns and employment contexts. See Kaster v. Independent School District No. 625, 284 N.W.2d 362, 364 (Minn. 1979). If the employee establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment decision. Hubbard, 330 N.W.2d at 445. If the employer meets its burden, the employee must prove by a preponderance of the evidence that the legitimate reason offered by the employer was a mere pretext for reprisal. Id. An employee may show pretext either directly by persuading the court that a discriminatory reason likely motivated the employer or indirectly by showing that the employer’s proffered explanation is “unworthy of credence.” Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). Proof of discrimination may be shown by direct evidence of discriminatory motive, such as where an employer announces he will not consider females for positions. Sigurdson v. Isanti County, 386 N.W.2d 715 (Minn.1986). In the alternative, where direct evidence is not available a plaintiff may show discrimination by indirect means. Id.
Sexual Harassment Claim
In order to establish a prima facie case of quid pro quo sexual harassment, a plaintiff must show:
- she is a member of a protected group;
- she was subject to unwelcome harassment in the form of sexual advances or requests for sexual favors;
- the harassment was based upon sex; and,
- submission to the unwelcome advances was an express or implied condition for receiving job benefits or her refusal to submit resulted in tangible job detriment.
Cram v. Lamson & Sessions Co., 49 F.3d 466, 473 (8th Cir. 1995); Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F.Supp.2d 953, 966 (Minn. 1998).
The threshold for determining that conduct is “unwelcome” is whether it was uninvited and offensive. Burns v. McGregor Electronic Industries, Inc., 989 f.2d 959, 962 (8th Cir. 1993). The court may consider the victim’s participation in the conduct, the victim’s speech and manner of dress, and whether there was a personal relationship between the harasser and the victim in determining whether the conduct was uninvited or offensive. In regards to the fourth element, an unfulfilled threat of an adverse employment action is insufficient to state a claim, as harassment must result in a tangible job detriment if it is to be actionable. Grozdanich, 25 F.Supp.2d at 966.
Hostile Work Environment Claim
The MHRA permits a hostile work environment claim based on sex that is separate from its prohibition of sexual harassment. LaMont v. Indep. Sch. Dist. No. 728, 814 N.W.2d 14, 21-22 (Minn. 2012) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). In Meritor, the Court held that a plaintiff may establish a violation by proving that discrimination based on sex has created a hostile or abusive work environment, and that the plaintiff need not show that the harassment has economic consequences, thereby distinguishing between quid pro quo sexual harassment and hostile work environment sexual harassment. Id. At 64-66.
To succeed on a hostile work environment claim, a plaintiff must prove that:
- she is a member of a protected group;
- she was subject to unwelcome harassment;
- the harassment was based upon sex; and,
- the harassment affected a term, condition or privilege of her employment. Id.
In order to demonstrate that the harassment affected a term, condition, or privilege of employment, a plaintiff must show that the harassment was “so severe or pervasive as to alter the conditions of the [plaintiff’s] employment and create an abusive working environment.” Goins v. West Group, 635 N.W.2d 717, 725 (Minn. 2001). To clear the high threshold of actionable harm, the plaintiff has to show that the workplace is “permeated with discriminatory intimidation, ridicule, and insult.” Duncan v. General Motors Corp., 30 F.2d 928, 934 (8th Cir. 2002).
In addition, 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. Id. In determining “whether an environment is sufficiently hostile or abusive to support a claim, courts look at the totality of the circumstances.” LaMont, 814 N.W.2d at 21-22. Those circumstances include “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.” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998)).
Types of conduct that generally do not rise to the level of actionable harassment include asking an employee to dinner once or paying a personal compliment with no discussion of sexual favors, innocent flirtation, and isolated incidents which have no adverse impact on employment. See 17 Minn. Prac., Employment Law & Practice § 11:9 (3d ed.) (citing Bersie v. Zycad Corp., 417 N.W.2d 288 (Minn. Ct. App. 1987) (calling employee “sweetheart” and “doll,” sexual joking, and close physical proximity on one occasion do not support claim for sexual harassment). Conduct which can constitute sexual harassment if it is sufficiently pervasive includes “dirty” jokes and comments, prominently displayed centerfolds or pin-ups, sexually suggestive remarks, physical touching (even when non-sexual in nature), questioning regarding an employee’s sex life, and derogatory or abusive comments based on an employee’s gender. Id. (citing Hall v. Gus Const. Co., Inc., 842 F.2d 1010 (8th Cir. 1988) (conduct of a nonsexual nature properly considered in determining whether sexual harassment occurred); Wirig v. Kinney Shoe Corp., 461 N.W.2d 374 (Minn. 1990) (finding that statements including comments about plaintiff’s body, offensive sexual names, discussions about sexual fantasies, nonconsensual kissing, pinching, and patting constitute sexual harassment).
An aggrieved party may be entitled to compensatory and punitive damages, as well as reasonable attorney’s fees and costs. Minn. Stat. §§ 363A.29, subd. 4 (in addition to compensatory and punitive damages awarded to an aggrieved party, an administrative law judge shall order any respondent found to be violation to pay a civil penalty to the state); 363A.33, subd. 7 (court may allow prevailing party a reasonable attorney’s fee as part of the costs).
Compensatory damages may be awarded in an amount up to three times the actual damages sustained to the aggrieved party. Minn. Stat. § 363A.29, subd. 4. Actual compensable injuries may include “impairment of reputation, personal humiliation, and mental anguish and suffering,” in addition to lost wages. Kohn v. City of Minneapolis fire Dep’t, 583 N.W.2d 7, 14 (Minn. Ct. App. 1998) (quoting Minn. Stat. § 363.071 (1996); now codified as § 363A.29, subd. 4(a)). Similarly, multiple compensatory damages are not duplicative of punitive damages where at least one objective of multiple compensatory damages is nonpunitive. Phelps v. Commonwealth Land Title Insurance Co., 537 N.W.2d 271, 274 (Minn. 1995).
Infliction of Emotional Distress
In order to sustain a claim of intentional infliction of emotional distress, the employee must show that:
- the conduct was extreme and outrageous;
- the conduct was intentional or reckless;
- the conduct caused emotional distress; and
- the emotional distress was severe.
Dornfeld v. Oberg, 503 N.W.2d 115 (Minn. 1993); Hubbard 330 N.W.2d 428, 439 (Minn. 1983). Conduct is “extreme and outrageous” where it is “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community. Id. (quoting Haagenson v. National Farmers Union Property and Casualty Co., 277 N.W.2d 648, 652 (Minn. 1979). Liability does not extend to “insults, indignities, threats, annoyance, petty oppressions, or other trivialities. Langeslag v. KYMN, Inc., 664 N.W.2d 860 (Minn. 2003) (citing Restatement (Second) of Torts § 46 cmt. D (1965).
Minnesota courts have cautioned that intentional infliction of emotion distress is “sharply limited to cases involving particularly egregious facts” and require that a high standard of proof is required to submit the claim to a jury. Id. (citing Hubbard, 330 N.W.2d at 439). In 2006, the Minnesota Court of Appeals in Wenigar v. Johnson, 712 N.W.2d 190 (Minn. Ct. App. 2006), held that an employer’s conduct met this high standard. In Wenigar, while employed on the defendant’s farm, the plaintiff was not allowed to take break, was housed in uninhabitable quarters, was shouted at and accused of not completing his work, and was ridiculed and called “stupid” and “retarded.” 712 N.W.2d at 197-98. The court held that the defendant’s conduct was extreme and outrageous. Id. at 208. However, the large majority of the time Minnesota courts have dismissed claims of intentional infliction of emotional distress. See, e.g., Leaon v. Washington County, 397 N.W.2d 867, 873 (Minn. 1986) (employer not liable for social off-duty conduct directed at Deputy Sheriff, despite fact conduct was “despicable”); Eklund v. Vincent Brass and Aluminum Co., 351 N.W.2d 371, 379 (Minn. Ct. App. 1984) (denying claim where employee terminated without warning or explanation even though the employee sought medical and psychological treatment as result of embarrassment, depression, and illness).
It should be noted that the appropriate method of proving the severity and causation of emotional distress is through medical testimony. Langeslag, 664 N.W.2d at 870.
In order to establish a claim of negligent infliction of emotional distress, a plaintiff must show one of three circumstances:
- he suffered from a physical injury;
- he was within the zone of danger of physical impact, that he reasonably feared for his own safety, and that he suffered severe emotion distress as a result; or
- there has been a direct invasion of one’s rights such as that constituting slander, libel, malicious prosecution, seduction or other willful, wanton or malicious conduct.
Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557, 560 (Minn. 1996), (quoting State Farm Mut. Auto. Ins. Co. v. Village of Isle, 122 N.W.2d 36, 41 (1963).
In the last category, negligent infliction of emotional distress is an element of the damages arising from an intentional tort that constitutes a direct violation of the Plaintiff rights. Lickteig, 556 N.W.2d at 560. This category is often referred to as “parasitic” damages , in that the emotional distress damages are “insufficient in themselves to make the [intentional tort] actionable, but once the cause of action is made out without them, they [may] be tacked on as ‘parasitic’ to it.” Id. (citing Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 27 (Minn.1996). In order to succeed in a claim of negligent infliction of emotional distress under this prong, the plaintiff must show the actor intentionally and unreasonably subjected plaintiff to emotional distress which the actor should have recognized as likely to result in illness or other bodily harm. Restatement (Second) of Torts § 312 (1965).
Compensatory damages are available where an employee proves the necessary elements of infliction of emotional distress. Hubbard, 330 N.W.2d at 438. Punitive damages are awarded only when clear and convincing evidence of deliberate disregard for the rights or safety of others exists. Minn. Stat. § 549.20, subd. 1 (2012). The Minnesota Court of Appeals has held that the standard for awarding punitive damages under Minn. Stat. § 549.20, subd. 1 (2012) is similar to the standard required for a finding of intentional infliction of emotional distress. Therefore, where a plaintiff has proven the necessary elements of an intentional infliction claim, he or she has generally met the burden of punitive damages. See 17 Minn. Prac., Employment Law & Practice § 13:12 (3d ed.).
Labor Trafficking (Federal & State)
Trafficking Victims Protection Reauthorization Act
The Trafficking Victims Protection Reauthorize Act (“TVPRA”), 18 U.S.C. §§ 1581 – 1596, provides a civil remedy for any individual whom is a victim of forced labor. This new provision permits individuals to file a civil action against their traffickers in district court to recover damages (actual and punitive) and reasonable attorney fees. 18 U.S.C. § 1595 (2008). In addition, a person convicted under section 1589 could be sentenced to serve up to 20 years in prison. There is a 10 year statute of limitation for filing a civil suit under the TVPRA. 18 U.S.C. § 1595(c). It is important to note that a victim that is simultaneously involved in the criminal prosecution of her trafficker will be forced to stay her civil suit while the criminal trial is pending. 18 U.S.C. § 1595 (2008).
The TVPRA (2008) makes it unlawful to provide or obtain the labor or services of a person through one of three prohibited means. Congress enacted § 1589 in response to the Supreme Court’s decision in United States v. Kozminski, 487 U.S. 931 (1988), which interpreted section 1584 to require the use or threatened use of physical or legal coercion. Section 1589 broadens the definition of the kinds of coercion that might result in forced labor.
Under section 1589, whoever knowingly provides or obtains labor or services of a person by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint. 18 U.S.C.A. § 1589(a)(4). The term “serious harm” means any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm. 18 U.S.C.A. § 1589(c)(2).
Minn. Stat. § 609.282
Under Minnesota Statutes section 609.282, subd. 2, any person who knowingly engages in labor trafficking of another is guilty of a crime and may be sentenced to imprisonment for up to 15 years or a fine up to $30,000. The requirements are identical to 18 U.S.C.A. § 1589.
A labor trafficking victim may bring a civil cause of action against any person who violates Minn. Stat. § 609.284, subd. 2. The court may award compensatory and punitive damages, as well as reasonable attorney’s fees and costs. This remedy is in addition to potential criminal liability.