In Minnesota, the legislature is debating a bill that would expand the types of sexual harassment that would violate state law. The bill would overturn court decisions which require sexual harassment to be “severe or pervasive” to be illegal. If passed, this bill would provide a powerful incentive to employers to do even more to address the epidemic of sexual harassment in the workplace.
Both federal and state courts use the “severe or pervasive” standard to distinguish between harassment that an employee can sue her employer for and harassment that she cannot. There are numerous examples of court cases where courts applied this standard and dismissed cases where many people believe the harassment should have been unlawful. For example, in one case from Alabama, a court held that harassment was not “severe or pervasive” even though it included a man doing things to a female subordinate such as knocking her over onto a couch and asking her to “blow” him; propositioning her for sex; referring to women as “tramps,” “sluts,” and “bitches;” playing with his zipper in front of her while saying “hey babe;” and other crude sexist conduct.
If this Minnesota bill becomes law, it is unclear where Minnesota courts will draw the line between actionable harassment and unactionable harassment. They could decide that any sexual harassment, no matter how severe or pervasive, is actionable. In which case, women who experienced minor forms of sexual harassment could get very small amounts of monetary relief if they sued. But perhaps even more important than providing some monetary relief, those lawsuits could permit the courts, through their powers to order “injunctive relief,” to force employers to take actions to better prevent and correct sexual harassment.
Employers will likely argue that this bill will increase the number of “frivolous” lawsuits against them for sexual harassment. This concern is overblown because many factors would still exist that deter victims from complaining about sexual harassment, such as the fear of retaliation, fear people will not believe them, and the embarrassment of sharing humiliating life experiences with others. Indeed, expert studies have shown that even harassment that involves unwanted physical touching is only reported 8% of the time. Thus, the problem does not seem to be too many “frivolous” lawsuits and, instead, appears to be that there is too much sexual harassment going unaddressed.