ST. PAUL - A simple but significant sexual harassment proposal that could affect every workplace in Minnesota moved ahead at the Capitol on Thursday night, April 27, but not everyone is happy about it.
A number of employment attorneys and some small business advocates fear the proposal, which allows for a lower legal bar to sue an employer for sexual harassment, could lead to a flood of lawsuits and leave judges without direction.
Supporters of the bill - and they are legion and bipartisan in the state House - dismiss many of the criticisms, as do a number of attorneys and advocates who say current legal standards are a vestige from decades ago, when piggish antics weren't held as accountable as they should be in the #MeToo era.
House Majority Leader Joyce Peppin, R-Rogers, who is leading the charge on the bill, said it's possible it could be tweaked to address some of the concerns. But, she emphasized, a majority of House members from both parties have already signed on to the plan, and earlier this week she said she's confident it will pass the full House soon.
The bill was approved in a unanimous voice vote by the House's civil law committee late Thursday night.
Its contents are simple. One sentence: "An intimidating, hostile, or offensive environment ... does not require the harassing conduct or communication to be severe or pervasive."
That one addition to the state's Human Rights Act would relieve courts of a legal standard that has become hallowed since a 1986 U.S. Supreme Court case. Supporters of the bill, as well as some judges, say the standard that harassment "be severe or pervasive" has resulted in lawsuits over unconscionable behavior being thrown out of court.
Flood of lawsuits?
"There's some fairly appalling case law here that a lot of us are just learning about as this has been put on our radar," Mike Hickey, Minnesota state director for the National Association of Independent Businesses, told lawmakers at Thursday's night's hearing.
However, he said, removing the "severe or pervasive" standard would lead to more lawsuits, "some deserved, some not." He said small businesses, many of which don't have human resources departments or the type of liability insurance to protect them from large payouts, would be especially vulnerable.
Melissa Raphan, an attorney with the Dorsey and Whitney law firm, said that nullifying the "severe or pervasive" standard will leave courts "without guardrails." Raphan, whose clients include employers, said the proposal "would really result in unpredictable outcomes" while judges attempt to figure out what does and what doesn't rise to the level of actionable harassment. "The real winners will be the lawyers," she said.
State Rep. John Lesch, a St. Paul Democrat and attorney, said the original state law does have a clear standard, but the higher "severe or pervasive" was foisted upon it by higher courts.
"I just don't buy it that they're going to be rudderless," Lesch said. Courts, he said, are used to clarifying gray areas. "They'll just make up the standard if they have to."