Most of us can easily answer the question, "who's in charge here?" in our offices or places of work. But a new decision by the Minnesota Supreme Court will radically change the way that employers must think about the term "supervisor" because they are now automatically on the hook when even lower-level managerial staff engage in certain acts of unlawful sexual harassment.
Last Friday, the Supreme Court handed down a ruling in Frieler v. Carlson Marketing Group, Inc., Case No. A06-1693 (Minn. May 30, 2008). The decision settles the issue of what standards apply under the Minnesota Human Rights Act ("MHRA") to hold an employer liable for the sexual harassment by a "supervisor," as opposed to conduct by a non-supervisor. The Supreme Court followed the federal standard that applies to sexual harassment claims brought under federal anti-discrimination law. In such cases, the plaintiff alleging harassment does not need to show that the employer actually knew or should have known about the harassment and failed to take action to be liable. Instead, employers may be held vicariously liable-and under certain circumstances, strictly liable-for the acts of any "supervisor" who sexually harasses an employee.
Who qualifies as a "supervisor"? More than just your traditional notion of "the boss," the Supreme Court held that a supervisor is someone "with immediate (or successively higher) authority over a victimized employee." This means that "the individual has authority to take or recommend tangible employment decisions affecting the employee; or... the individual has authority to direct the employee's daily work activities." As a result of this decision, employers should be thinking more broadly than just their executive management, department supervisors, managers, and others in the organization who obviously have supervisory authority; now, positions such as line leads, team leaders, and others who make daily decisions affecting your work force may well qualify as "supervisors" under our state anti-discrimination law.
When can an employer be held strictly liable? An employer can be held strictly liable, meaning that it is automatically liable for damages, where an employee proves that a supervisor has engaged in harassment and where a tangible employment action (such as termination, demotion, or significant reduction in pay or hours) was taken against the allegedly harassed employee.
What should an employer do? Employers are not powerless in this situation. The Court permits employers to escape liability where the following circumstances apply:
(1) no tangible employment action has been taken against the allegedly harassed employee;
(2) the employer took reasonable care to prevent and correct promptly any harassing behavior; and
(3) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities by the employer or to otherwise avoid harm.
Employers that promulgate workable anti-harassment policies, provide proper training, and respond appropriately to any complaints of harassment fare far better under this standard than those who simply cross their fingers that no claims occur. The Frieler Court specifically noted that it would be critical to analyze the breadth of the policy and the training received by the alleged harassers in determining the employer's liability.
Maslon's Labor and Employment team has counseled clients in all stages of the process, starting with reviewing and drafting anti-harassment, discrimination, and no-retaliation policies that pass legal muster. We also provide comprehensive on-site training. We also defend employers against charges and lawsuits in courts, tribunals and administrative agencies nationwide. For employers that already have in place formal training programs for supervisors, we urge that they reconsider whether based on this new Court case there are others in the organization who must also receive such training. The actions that employers should take to deal with this new legal development are straightforward and inexpensive, and they will go a long way toward minimizing the risk of expensive and risky legal claims while helping to establish and preserve a workplace of positive employee relations.
Please contact the Maslon Labor & Employment attorneys to discuss how this rule change may affect your workplace.
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