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Beware: You’re now strictly liable for supervisor harassment

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in Discrimination and Harassment,Firing,HR Management,Human Resources

The Minnesota Supreme Court has made it easier for employees to hold their employers liable for sexual harassment. For the first time, the court has ruled that sexual harassment cases brought under the Minnesota Human Rights Act (MHRA) should follow the rules laid out for federal Title VII sexual harassment cases.

The decision means employers can do precious little to escape liability if a supervisor harasses a subordinate and then takes, or threatens to take, an adverse employment action against that employee. The employee who says she was harassed doesn’t have to prove her employer knew or should have known about the harassment and failed to take timely and appropriate action.

In the wake of this decision, it simply doesn’t matter that you have a great harassment policy, encourage employees to complain about harassment and investigate all claims promptly.

The case: Judy Frieler worked part time for Carlson Marketing Group. After more than a decade, she applied for a full-time opening in a different department and was told she had to talk to another supervisor about the job.

What happened next spawned the lawsuit. Frieler claimed the supervisor asked her to enter a limited-access room to discuss the position. There, she claimed, the door locked automatically behind her, leaving her alone with the supervisor. She said he called her a “sex pot” who had been “making this old man horny for years and years.” Frieler said the man grabbed her buttocks while pushing himself against her body, all the while reaching under her shirt and groping her breasts. She claimed he ended the session with the warning that “I’m going to be your boss. You got to take it; you got to handle it.”

The company has a sexual harassment policy, which Frieler knew about. It required her to report any sexual harassment to a supervisor, HR or an ethics hotline. Frieler didn’t do any of those things right away, and the company hired her for the full-time job.

A few days later, she described the incident to her group leader, who insisted she contact the HR office.

She did, and was placed on paid leave while the company investigated. Meanwhile, the alleged harasser quit. Frieler then sued under the MHRA, alleging supervisor sexual harassment.

The Minnesota Supreme Court concluded that if supervisor sexual harassment is linked to an adverse employment action, an employee doesn’t have to prove an employer knew or should have known about the harassment.

The court then sent the case back to trial to determine whether the alleged harasser was a supervisor under the law—that is, whether his input into offering Frieler her new job was substantial enough. If his recommendation carried “substantial weight,” he will be considered a supervisor. (Frieler v. Carlson Marketing Group, No. A06-1693, Supreme Court of Minnesota, 2008)

Bottom line:
This decision makes it more crucial now than ever for HR to carefully investigate any and all adverse employment decisions and formally approve them in advance. Gone are the days of simply rubber-stamping supervisors’ discipline decisions. Instead, make absolutely sure that demotions, promotions and terminations are based on objective factors.

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