The Minnesota Supreme Court today rejected the argument that if an employer’s sexually explicit behavior is extended to both women and men in the workplace, it’s not sexual harassment under the Minnesota Human Rights Act. But the ruling split the court because it did not specifically declare the employer’s actions to be sexual harassment.
The court ruled in the case of three women, who were employed at Lou’s Fish House in Two Harbors. They testified in district court that owner Brian Zapolski asked them about their sexual preferences and sex lives, made sexually suggestive comments to them, showed them pornography, asked them to find friends who would have sex with him, and touched them.
But a district court judge said that’s not sexual harassment because they didn’t lose salary or their jobs, didn’t seek counseling, were not specifically sexually propositioned and Zapolski’s sexual comments were “not merely directed at females.”
Today the Supreme Court struck that decision down, agreeing with a Court of Appeals ruling. But the Court of Appeals had ruled the women were entitled to a judgment under the human rights law. The Supreme Court today, however, sent the case back to the district court for a decision on the women’s claims.
Justice Lori Gildea said in her ruling that the sexual harassment claims do not require the three women to prove discrimination. “The fact that Zapolski directed inappropriate, sexual comments at both male and female employees… cannot support the district court’s determination that the conduct was not sufficiently severe…”
But Justice Wilhelmina M. Wright, while agreeing with Gildea’s overall ruling, said today’s opinion doesn’t answer an important question raised in the case: what standards apply when reviewing a hostile work environment claim under the Minnesota Human Rights Act? She said there’s no need to send the case back to the original judge for a decision.
If the conduct at issue in this case does not unmistakably violate the MHRA, I shudder to consider both the degrading conduct that any employee must endure in a Minnesota workplace and the unreasonably burdensome actions she must take to prove that her workplace was hostile so as to vindicate her legal right to be free from a hostile work environment. On the record before us, applying the appropriate legal standard, we need not delay or deny the Employees a just resolution of their hostile work environment claims.
Justice Wright said she refused to take part in “playing ‘kick the can down the road’ with a question of law that affects the legal protections of every worker — male and female — in Minnesota.”
In other words: if the Supreme Court can’t rule that the three women’s rights were violated in this case, what would it take to so rule?
In finding that Zapolski’s conduct did not create an objectively hostile work environment, the district court relied in part on its finding that the Employees were never explicitly sexually propositioned. This underlying finding of fact is clearly erroneous and contradicted by the district court’s earlier finding that Zapolski asked Reinhold “if she would kiss him when he came to work,” to which Reinhold replied “no.” Notwithstanding Reinhold’s refusal, Zapolski’s request is a sexual proposition. Although Moyer was not personally propositioned, the district court found that during Zapolski’s sexual discussions with her, Zapolski “attempt[ed] to have Moyer solicit other young women to have sex with him.”
Justice Paul Anderson called the refusal to rule “extraordinary.”
I believe something more needs to be said about the message the majority delivers to Minnesota’s citizens, whether those citizens are male or female, young or old, rich or poor. The unfortunate consequence of the majority’s opinion may well be that offensive and repulsive sexual misconduct in the workplace, like Zapolski’s verbal and physical misconduct, will be much more difficult to curtail in Minnesota and that many victims of similar misconduct will be left without a remedy under the law.
In his strongly worded dissent, Justice Anderson said the court majority made an “almost heroic effort to ignore the district court’s erroneous findings,” calling Zapolski’s behavior “classical sexually motivated misconduct in the workplace.”
Anderson, who is retiring, said when he became a justice, he thought the state was well on its way to not tolerating sexual harassment in the workplace. “As my service as an appelate judge draws to a close,” he wrote, “I am concerned that the opinion the majority renders today signifies a step backwards on what I once believed was a one-way path toward ending sexual harassment in the workplace.”