Is Sexual Harassment Permissible If It Is Directed At Both Male and Female Employees?
No – the Minnesota Supreme Court recently held that sexual harassment need not be directed at the victims because of their gender in order to constitute actionable sexual harassment under the Minnesota Human Rights Act (MHRA). Equal opportunity offenders may be liable for sexual harassment, too.
In Rasmussen v. Two Harbors Fish Company, several female employees sued their former employer for sexual harassment under the MHRA. No. A11-2178 (Minn., May 22, 2013). Among other things, they alleged that their boss, a male, discussed his sex life with them, asked them questions about their sex lives, discussed the size of male genitalia in the workplace, propositioned them for sex, and showed them pornography. The trial court initially held that this conduct was not sufficiently severe and pervasive to give rise to a sexual harassment claim, in part, because the manager directed his comments at both male and female employees. The Minnesota Court of Appeals reversed, and the Minnesota Supreme Court affirmed.
In its opinion, the Minnesota Supreme Court explained that a claim for hostile work environment based on gender is a separate and distinct claim from a claim that sexual harassment created a hostile work environment. This distinction is subtle. One claim alleges that an employee suffered harassment because of his or her gender. The other alleges that an employee was subjected to harassment of a sexual nature. While the gender of the victim may be relevant in the context of determining whether someone was treated differently because of his or her gender, the Court held that it is not relevant in determining whether someone was subjected to sexual harassment. The fact that the manager “directed inappropriate, sexual comments at both male and female employees, therefore, cannot support the district court’s determination that the conduct was not sufficiently severe or pervasive to constitute actionable sexual harassment.”
Takeaways: The fact that a manager is sexually harassing both male and female employees in the workplace will not protect an employer from liability under the MHRA. Instead, it will likely double the employer’s potential exposure. If an employer wants to reduce potential liability for sexual harassment, it should make clear to all employees, both in policy and in practice, that sexual harassment is strictly prohibited and will not be tolerated.