Minnesota Supreme Court Adopts Liability Standard for Harassment by a Supervisor
By: ANNE M. RADOLINSKI
In a recent decision, the Minnesota Supreme Court adopted the federal standard for determining when an employer will be liable, even without prior notice or complaint, for harassment by a supervisor. The Frieler v. Carlson Marketing Group Inc. decision of May 30, 2008, has wide-ranging implications for companies with employees in Minnesota.
The plaintiff, Judy Frieler, brought an action against her employer for hostile work environment sexual harassment under the Minnesota Human Rights Act (MHRA), as well as assault and battery, based on the alleged behavior of Ed Janiak, who was a supervisor, though not her supervisor. Frieler, a part-time employee, sought a full-time position in the department where Janiak was the supervisor. The alleged behavior by Janiak occurred while Frieler was waiting to hear whether she would be moved to his department. Frieler alleged that on four separate occasions between February 23 and March 9, 2005, Janiak brought Frieler into a limited-access room and grabbed and touched her in a sexual manner. On March 9, Janiak and Frieler’s supervisor offered Frieler the shipping position and Frieler verbally accepted the position. The next day, Frieler told co-workers and her group leader about Janiak’s harassing behavior. The group leader insisted that Frieler report the behavior to human resources, and an investigation ensued. Janiak denied the harassment but resigned during the investigation. Frieler resigned after her psychologist recommended that she not return to any job at the company.
The district court granted summary judgment in favor of the company on each of Frieler’s claims. The Court of Appeals affirmed, reasoning in part that there was no evidence that the company knew or should have known of Janiak’s behavior until after Frieler complained and that the company then took reasonable, appropriate action.
The Minnesota Supreme Court affirmed the dismissal of the assault and battery claims, ruling that Frieler had failed to establish that the conduct by Janiak was foreseeable. However, the Court reversed summary judgment on the sexual harassment claim, allowing the claim to proceed ahead in the trial court. In doing so, the Court adopted the standard first articulated by the U.S. Supreme Court in the 1998 cases of Burlington Industries Inc. v. Ellerth and Faragher v. City of Boca Raton . Thus, the Frieler decision may impose greater employer liability for sexual harassment by a supervisor under the MHRA. An employee does not need to prove that the employer knew or should have known about the sexual harassment and failed to take timely and appropriate action. The employer is liable for unlawful harassment inflicted or created by a supervisor with immediate (or successively higher) authority over the employee. The employer has an affirmative defense to liability or damages, but only where no tangible employment action has been taken against the employee and the employer can show that (a) it exercised reasonable care to prevent and promptly correct sexually harassing behavior, and (b) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer or to otherwise avoid harm.
The Minnesota Supreme Court’s adoption of the federal standard is perhaps not surprising; however, the Court’s direction as to what constitutes a “supervisor” for vicarious liability purposes gives one pause. The company argued that Frieler’s sexual harassment claim should be dismissed, even under the federal standard, because Janiak was not Frieler’s supervisor. The Court, however, adopted the broader Equal Employment Opportunity Commission (EEOC) definition of supervisor which provides that an individual qualifies as an employee’s supervisor if “the individual has authority to undertake or recommend tangible employment decisions affecting the employee; or . . . the individual has authority to direct the employee’s daily work activities.”
In permitting her claim to proceed, the Court relied upon these points:
- Janiak was the supervisor in the shipping department when Frieler applied for the open position, and Janiak had input into the decision to hire her.
- Janiak was given authority to determine whether Frieler’s attendance issues would interfere with the duties of the shipping department position.
- Janiak used his position as shipping department supervisor to bring Frieler to the limited-access room where the alleged sexual harassment took place.
- The alleged sexual harassment occurred while Frieler was being considered for the open position.
All eyes will be on the Frieler case as it proceeds forward and on subsequent cases as Minnesota courts grapple with who is a supervisor for purposes of determining vicarious liability in sexual harassment cases.
Members of our Employment Group are pleased to assist in all aspects of harassment risk management, including the development of effective written policies, advice regarding practices and investigations, and employee training.
In light of the Frieler decision, it is important that employers provide periodic, separate training of individuals who are in true positions of authority. It is equally important that employers provide periodic, mandatory training to all other employees to ensure that the employees understand the standard of workplace behavior expected of them and to ensure that employees know what they should do if they witness, experience, or receive a complaint about inappropriate behavior.