Topic:  Severe or Pervasive: Just How Bad Does Sexual Harassment Have To Be In Order To Be Actionable?

Heather Tabery, Esq. and Shelia Engelmeier, Esq. published an in-depth review of sex harassment case law in Bench & Bar of Minnesota earlier this year. This presentation will provide an overview of sex harassment background, history, case law, interpretations, the severe and pervasive standard, and modern day implications.

Viewed historically, the case law in the area of harassment in general, and sexual harassment in particular, has seemed to trend from pro-employee to pro-employer. The developments in the past several years show that the pendulum has swung quite emphatically toward the employer. In particular, many courts have found reasons to dismiss sexual harassment cases on the basis that the harassment was just not bad enough—not sufficiently severe or pervasive—to be actionable in court. As a result, courts continue to dismiss cases on summary judgment because the harassment that plaintiffs endured was not sufficiently severe or pervasive to merit judicial intervention. Over the years, the courts have steadily escalated the severe or pervasive standard. And the severity or pervasiveness question is not considered to be a question of fact for a jury.

After #MeToo, the gulf between social standards and the severe or pervasive legal standard has become undeniable. Although society considers forcing an employee to look at pornography, rubbing an employee’s shoulders in a sexual manner, or touching an employee’s breasts to be sexual harassment, the courts continue to dismiss cases involving similar behavior. Minnesota statutes do not explicitly include the severe or pervasive standard, which has grown up through case law. Despite lobbying efforts by the employment law bar and victims’ rights activists, the Minnesota Legislature has yet to address this issue. But the prevailing legal precedent may change very soon. On November 12, 2019, the Minnesota Supreme Court heard oral arguments in Kenneh v. Homeward Bound. In that case, the district court granted summary judgment to an employer even though the plaintiff’s case included allegations of sexual talk, licking of the lips, a proposition for oral sex, and being followed by a co-worker after work. The court ruled that this behavior was not sufficiently severe or pervasive to allow the case to go to a jury. The Kenneh decision will be groundbreaking if the Minnesota Supreme Court decides to reverse the swing of the pendulum toward employers by reversing and remanding the case. But the Court could decide to concur with past precedent regarding the standard, leaving the issue to the Legislature to resolve. The Court's decision was expected in February 2020, but have yet to release.

Speaker:  Heather Tabery, Esq. (Engelmeier & Umanah, P.A.)

Heather joined Engelmeier & Umanah in January of 2018. Her love of justice, which does not always favor either plaintiff or defendant, motivates Heather to assist clients in reaching the outcome that is most beneficial for all parties involved. Heather is a very empathetic attorney who loves to learn new things, solve new problems, and face new challenges.

Heather’s employment law practice at Engelmeier & Umanah includes representing employers and employees in cases involving discrimination, sexual harassment, whistleblower violations, retaliation/reprisal, severance negotiations, and more.

Heather’s experience working with both employers and employees provide her with insight that helps her to facilitate resolution of difficult cases. She is compassionate toward her clients and realistic about expectations. The scope of her practice consists of advising clients pre-litigation during settlement negotiations, mediations, and through litigation, including at the appellate level.

Heather’s practice also encompasses negotiating solar contracts, working with public schools, and business litigation, including fraud, breach of contract, breach of fiduciary duty, and promissory estoppel.

Since becoming licensed, Heather has worked with a wide variety of clients on many types of cases. She has a diverse legal background with a history of helping clients in employment law, trust and estate litigation, transnational commercial law, torts, contract disputes, administrative law, and civil rights issues. Heather’s background allows her to be versatile and to approach each case with a unique perspective when she uses to find creative solutions to assist clients with any issues they face.

Remote attendance only!

Member Cost: Free 
Non-Member Cost: $15

Please register no later than April 23, 2020.

If you have any questions or concerns, please contact Maddie Baker at maddie.baker@sivbar.com.