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Minnesota Court of Appeals Clarifies What Constitutes Sexual Harassment under Minnesota Law

Minnesota Court of Appeals Clarifies What Constitutes Sexual Harassment under Minnesota Law
  • September 25, 2012

Explaining that whether sexual harassment occurred is a legal determination under the Minnesota Human Rights Act, the Minnesota Court of Appeals has reversed a trial court’s dismissal of three employees’ suit for hostile work environment against their employers.  Rasmussen v. Two Harbors Fish Co., No. A11-2178 (Minn. Ct. App. July 23, 2012). 

This is a substantial change in Minnesota law.  The court appears to say credibility determinations are unnecessary and appears to eliminate the need to weigh whether alleged acts of harassment amount to a pervasively hostile work environment. The Court concluded the trial court in this case erred in not finding, under the totality of the circumstances, the complained-of sexual harassment actionable. 

The Court also dismissed the plaintiffs’ claim of “aiding and abetting” against one of the employers, who was the sole shareholder and owner of the business.  It explained, “As the only wrongdoer here, [the individual employer] simply cannot aid and abet his own discriminatory conduct.”  The Court returned the case to the trial court.

This is not the last word, however.  On September 18, 2012, the Minnesota Supreme Court granted review of the Court’s decision overturning the trial court’s findings of no harassment.  It also granted review to determine whether the owner/operator of the corporate employer could be found liable for aiding and abetting sexual harassment through his corporation.  We will report on the Supreme Court decision.

Facts

Brian Zapolski is the owner, manager and sole shareholder of Two Harbors Fish Co., doing business as Lou’s Fish House and BWZ Enterprises, LLC, doing business as B&R Motel. Lou’s is a retail store and B&R Motel is a small, connected motel. 

The plaintiffs, three women who worked for Lou’s and B&R Motel, sued Zapolski and the corporate entities for sexual harassment in violation of the Minnesota Human Rights Act.  They also sued Zapolski individually for aiding and abetting the sexual harassment of the employers in violation of the Act.

The trial court found the following: 

  • One of three complaining employees frequently was asked about her favorite sexual position by Zapolski.
  • In addition to describing to the employee his favorite sexual position and dreams in sexually explicit terms, Zapolski brought a Playboy magazine and a pornographic video into the workplace, asking the employee to watch the video at home and report back on what she saw.
  • Zapolski also touched the employee’s buttocks with his hands and felt the employee’s arms to feel her muscles.  The employee also testified that the owner once grabbed her from behind and pushed his pelvis into her buttocks, embarrassing her, and requiring her to tell him to get off her. 
  • In the presence of the employee, Zapolski also made coarse and inappropriate comments about female customers, including comments about their breasts and posteriors, and often referred to them with the “C” word.

The two other female plaintiffs suffered from similar treatment by Zapolski.  Eventually, each plaintiff quit.

After a bench trial, the trial court nevertheless concluded that, based on examination of the witnesses’ demeanor and credibility, the plaintiffs had failed to show they were subjected to a work environment made severely and pervasively hostile due to their sex.  It dismissed the claims, finding the conduct, “even if totally true,” does not rise to the “level of unwelcome sexual harassment actionable under the Minnesota Human Rights Act.”  As the aiding-and-abetting claim was predicated on the sexual harassment claims, the aiding-and-abetting claim was dismissed.

The Law

To prove a hostile work environment claim for sexual harassment under the Minnesota Human Rights Act, a plaintiff must show that the defendant’s conduct was unwelcome, that it consisted of sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature, and that it was sufficiently pervasive so as to substantially interfere with the plaintiff’s employment or to create a hostile, intimidating, or offensive work environment.

Legal Determination of Sexual Harassment

In reversing the trial court, the Court of Appeals gave everyone some important lessons on sexual harassment law in Minnesota.  The Court of Appeals found that whether sexual harassment occurred is a legal determination under the Act, which is different than a finding of fact.  The Court said it could apply the definition of sexual harassment “without having to make any credibility determinations....” 

This is significant because the Court is saying that if certain facts are shown, such as inappropriate touching, sexually crude and boorish jokes, and sexually related comments, it is not limited by a trial court’s findings that these acts did not “amount to” a severely and pervasively hostile work environment.  It can simply find that, if the acts occurred, then sexual harassment has occurred.
 
For employers, this lowers the threshold for an employee to prove sexual harassment.  It makes it easier for the appellate courts to overrule a trial court’s conclusions as to whether certain acts amount to sexual harassment because appellate courts, like the one in this case, owe no deference to a trial court’s legal conclusions.

This decision changes Minnesota law because the Act’s definition of sexual harassment provides that the pervasiveness is an element of proving sexual harassment.  In saying that credibility determinations are unnecessary to applying the sexual harassment statute, the Court appears to eliminate the need to weigh whether alleged acts of harassment amount to a pervasively hostile work environment.
 
Understanding that it was making new law on how harassment is determined, the Court analyzed the trial court’s findings of fact for “clear error” (which is the standard of review appellate courts usually use in evaluating findings of fact resting on a trial court’s firsthand assessment of witnesses’ demeanor and credibility).  Despite the deference usually accorded to trial courts on factual findings, the Court of Appeals, found the trial court’s findings of no sexual harassment were clearly erroneous because it determined there were inappropriate sexually related comments, inappropriate physical contact and other inappropriate acts.

Employers should investigate any inappropriate acts and address them.  This includes disciplining the alleged perpetrators, both to establish the company promptly and appropriately remedied the allegedly harassing acts and to stop any appearance of a hostile environment from forming.

Individual Aid and Abet Claim

The Court of Appeals was asked to determine if the owner of a small business could be liable for “aiding and abetting” discrimination by engaging in sexual harassment against his corporation’s employees in his capacity as a corporate representative. Here, the employer was a corporation and the alleged harasser, Zapolski, the owner/operator of the business, was the sole shareholder/owner of the corporation.  Acknowledging that corporations are “persons” under the Act, the Court of Appeals held that a shareholder/owner of a corporation cannot “aid or abet” his own corporation in sexual harassment.  The aiding and abetting statute contemplated that aidors and abettors must be giving substantial assistance or encouragement to another in order to be liable.  Because the corporation in this case did not engage in any affirmative discriminatory conduct or harassment, and only has liability as the employees’ employer, the individual owner/operator cannot be said to be aiding or abetting it in committing discrimination.  Accordingly, he was not individually liable.

However, the Court of Appeals said that while the owner/operator may not have individual liability as an aidor or abettor under the Act, the complaining employees may be able to sue him personally because, by engaging in sexual harassment, he was abusing the rules for operating corporations.

* * *

Employers, particularly small employers, must ensure they have policies prohibiting sexual harassment in the workplace and the policies are strictly followed, including by the corporation’s owners.
 
Jackson Lewis attorneys are available to answer questions about this case and to assist in drafting and reviewing workplace policies.

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