Office by John Morgan
Minnesota Sexual Harassment Laws
- Discipline and Resolution
- Follow-up and Retaliation
- Romance in the workplace
Definition of Sexual Harassment
Sexual harassment is defined as a form of sex discrimination. It exists in the workplace where an employee is subjected to unwelcome advances, suggestive comments, or physical contact of a sexual nature which create an intimidating, hostile or offensive working environment. Sexual harassment also exists if any employment decision affecting an employee is related in any way to the employee’s participation in, or rejection of, conduct of a sexual nature. The perpetrators of sexual harassment may be supervisors, co-workers, or even non-employees such as customers, vendors, and others who come into contact with the company’s employees. Employers may be held liable if they are aware an employee is subject to sexual harassment by employees or non-employees, yet fail to take timely and appropriate actions to protect their employees.257
Sexual harassment cases have involved allegations of a man harassing a woman, a woman harassing a man, and people of the same sex harassing one another.258
Sexual Harassment Policy
Every employer should have a written policy which (i) defines sexual harassment and other forms of unlawful harassment in the workplace, (ii) emphatically states that the employer will not tolerate harassment, (iii) encourages anyone who believes he or she is a victim of harassment to come forward and file a complaint, and (iv) assures a prompt and confidential investigation and resolution of the problem. A sexual harassment policy is often part of a general harassment policy, which prohibits harassment toward employees on the basis of all legally protected classifications, including, e.g., age, disability and religion. A growing number of employers have broadened their sexual harassment policies to prohibit all types of unlawful harassment, and a number of employers have adopted further policies that call upon all employees to treat each other with dignity and respect.
The policy should describe the various individuals to whom harassment complaints can be directed, and it should assure the complaining employee that there will be no retaliation as a result of bringing such a complaint. The policy should set out some general procedures which will be followed when a complaint is brought. The employer is advised to provide every employee with a copy of the policy (e.g., through an employee handbook) and to have employee meetings from time to time to ensure that potential victims understand that they need not tolerate harassment and to warn potential offenders that they are subject to discipline and discharge for violating the policy. Small employers may find that informal complaint procedures are effective and larger employers may wish to adopt more formalized reporting and resolution procedures. However, regardless of the details, it is critical that all employers adopt and communicate the essential elements of a harassment policy.
Federal and state law regarding sexual harassment provides employers a major incentive for adopting and distributing a policy against sexual harassment. The United States Supreme Court has ruled that employers are (1) always liable for harassment committed by supervisors that leads to a tangible adverse effect such as termination or demotion, and (2) also liable for supervisor harassment with less tangible harm unless they can show that they tried to prevent the harassment by adopting a policy and took appropriate corrective action when learning of the harassment.259 Similarly, the Minnesota Legislature has indicated that Minnesota law concerning sexual harassment should be interpreted consistently with federal law. Moreover, the Minnesota Court of Appeals has cautioned: “[c]ompanies that fail to institute such polices will naturally find themselves vulnerable to the likelihood that knowledge [of the harassment] will be imputed to them,” thereby increasing the risk that the employer will be liable for the harassment.260
Investigation of Sexual Harassment
Harassment complaints should be followed by a thorough investigation of the complaint. It is essential that the investigation be conducted immediately by a competent, disinterested investigator (either a company employee trained to do such investigations or an outside professional). Promises of complete confidentiality to complainants may limit an employer’s ability to take adequate timely and appropriate action in response to a complaint and do not remove the employer’s legal obligation to take such action.
One person at the company should be in charge of such complaints (although employees should be encouraged to bring their complaints to the attention of any management member with whom they may feel more comfortable) and this person should receive all of the details of the complaint (who, what, when, where, witnesses) and have a discussion with the accused to get his or her side of the story. The company should not prejudge the problem before doing a thorough investigation, it should keep the entire matter as confidential as possible, and it should take great care not to defame (wrongly accuse) the accused or any other individual in the process of conducting the investigation.
Sexual Harassment Discipline and Resolution
If the employer determines that harassment did occur, then the harasser must be disciplined. The extent of the discipline should depend upon the severity of the offense. A warning not to repeat the behavior may be appropriate in some situations while discharge may be appropriate in others. Sensitivity training, suspension and transfer are other options. However, the complainant should not be transferred unless he or she requests the transfer or agrees with it. A transfer against the wishes of the complainant could constitute unlawful retaliation.
If there is no proof of harassment following the investigation, the employer may not take disciplinary action against the accused. All parties can be reminded of the company’s policy and to come forward if any other problems occur.
Sexual Harassment Follow-up and Retaliation
The employer should follow up after any harassment incident to make sure–if the investigation resulted in a finding of harassment and the harasser is still employed–that no further harassment is taking place. In addition, it is extremely important for the employer to ensure that the complainant is not subject to retaliatory action of any kind following the complaint.
Romance in the Workplace
Employers who are faced with a romantic relationship between employees (often supervisor and subordinate) should be aware of potential liabilities arising out of these relationships, over and above the morale problems of other employees, drain on productivity, and gossip. If the relationship sours, for example, the subordinate may try to claim that the supervisor was pressuring the subordinate into the relationship in exchange for promotions. Harassment claims also may arise if one party is trying to break off the relationship and the other party is not accepting the breakup. In addition, other employees in the workplace may feel disadvantaged in their work because they are not romantically involved with the boss. These issues could develop into sexual harassment claims against the employer.
An employer can try to protect itself in this situation by talking with each party separately to assure that the relationship is mutual and warning supervisors in such relationships against favoritism. The employer also can protect itself by being prepared to respond promptly to complaints or signs of harassment. Since this is such a sensitive area and management is typically reluctant to intrude into the privacy of employees, this problem should be approached and handled carefully, with advice of legal counsel. Similarly, employers should exercise caution about expressing discontent or interfering in any way with an employee’s relationships outside the workplace, in light of various privacy laws.
257. See Costilla v. Minnesota, 571 N.W.2d 587 (Minn. Ct. App. 1997).
258. See Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75 (1998); Cummings v. Koehnen, 568 N.W.2d 418 (Minn. 1997).
259. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998).
260. Guiliani v. Stuart Corp., 512 N.W.2d 589, 595 (Minn. Ct. App. 1994).