Harrasment

Sexual Harassment in the workplace can constitute the tort of assault or battery as well as false imprisonment. This panel, however, discusses sexual harassment under state and federal anti-discrimination laws. Under the Minnesota Human Rights Act, Chapter 363, sexual harassment is a form of employment discrimination. For this reason, the victim of harassment may file a complaint with the State Department of Human Rights. That will trigger a probable cause investigation. Or, the employee may retain an attorney and bring suit. The remedies include damages, injunctive relief and attorneys fees.

Minnesota Statutes Section 363.01 Subd. 41. defines sexual harassment as follows:

"Sexual harassment" includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when:

(1) submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment, public accommodations or public services, education, or housing;
(2) submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual's employment, public accommodations or public services, education, or housing; or
(3) that conduct or communication has the purpose or effect of substantially interfering with an individual's employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment; and in the case of employment, the employer knows or should know of the existence of the harassment and fails to take timely and appropriate action.

This definition is quite similar to that found in EEOC regulations. 29 Code of Federal Regulations section 1604.11 contains the following:

(a) Harassment on the basis of sex is a violation of section 703 of title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when

(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment,
(2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
(3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Much of the recent litigation has centered around the circumstances under which an employer may be liable for the sexual harassment conduct of employees against co-employees. Under what circumstances can an employer claim that it should be exonerated because it was not aware of the misconduct. We discuss this in the next panel.