Issue

Is clarification of the Minnesota’s Human Rights Act needed with respect to sexual harassment and the definition of “actual damages?”

Policy

• Sexual Harassment: The Minnesota Human Rights Act (MHRA) should be amended to make it clear that the affirmative defenses employers have under federal law also apply in sexual harassment cases under state law. Prior to a 2001 law change, sexual harassment under the MHRA only existed if the employer “knows or should know of the existence of the harassment and fails to take timely and appropriate action.” This language was eliminated in an attempt to conform with a U.S. Supreme Court case on supervisor harassment and with the intent that federal defenses still would be available to employers. Recently, in Frieler v. Carlson Marketing Group, Inc., the Minnesota Supreme Court stated that the federal affirmative defenses should be adopted for harassment claims. Further, the court held that if an employer has an appropriate harassment policy and procedure to resolve complaints, it is only liable if it knew or should have known of the harassment and failed to take timely action. The Chamber would like to see this case law codified in statute.
• Definition of "Actual Damages: Currently, no definition exists for the terms “actual damages” under the MHRA. The Minnesota Supreme Court in the Ray v. Miller Meester Advertising, Inc. case interpreted the term to include future damages or front pay. Including front pay in actual damages is contrary to a U.S. Supreme Court decision (Pollard v. E.I. du Pont de Nemous & Co.). It states that front pay should not be considered part of compensatory damages. It views front pay as a substitute to an employer reinstating a former employee to his/her former job. If reinstatement occurs, front pay is not required. The Legislature should define “actual damages” to conform to the U.S. Supreme Court’s view of the issue.

Business Impact

Clarifying the Minnesota Human Rights Act with respect to sexual harassment will bring Minnesota statutes into conformity with federal law, as well as state case law, and protect employers that adopt and implement effective harassment and complaint policies and procedures. Defining “actual damages” to exclude front pay will put Minnesota law in agreement with the U.S. Supreme Court’s view of discrimination law.