Published in the 2017 July/August LAW issue of the Hennepin Lawyer, a membership publication of the Hennepin County Bar Association. Used with permission. 612-752-6000 [email protected]

When a Hostile Work Environment Becomes Legally Actionable By Dustin W. Massie

t’s easy to watch television shows like Mad Men—a drama set in the sixties that chronicles Power and Control—The Source the life of womanizing advertising executive Don Draper—and think about how far employee of the Matters rights have come. Mad Men reminds us that women often endured intolerable working condi- I tions that included sexual ultimatums and advances, not to mention discrimination based on It is well established that harassing conduct by perceptions that women were unfit to do the same work as men. However, harassment, supervisors or managers is more serious than and in particular, is far from a thing of the past. Need proof? Look no further than harassing conduct by co-workers. Supervisors the news cycle that is perpetually dominated by allegations of sexual harassment and misconduct and managers are in a position of authority and against network executives, talk show hosts, and U.S. presidents. With all the attention being paid to can exercise control over an employee, which the issue of harassment, employers are becoming increasingly conscious of the liability created by makes the harassing conduct more likely to ad- a “hostile work environment”—an environment so persistently or pervasively discriminatory that it versely affect that employee’s ability to perform adversely affects employees’ ability to perform their jobs. his or her job. For that reason, and in the context of sexual harassment, the Minnesota Supreme Sexual harassment, although perhaps the most well-known form of hostile work environment, is not Court reasoned: the only form of liability an employer must worry about. The law protects individuals and groups of people from inappropriate conduct or discrimination directed at them based on any protected When a fellow employee harasses, the victim status. In Minnesota, a hostile work environment can be created based on an employee’s race, color, can walk away or tell the offender where to go, creed, religion, national origin, sex, marital status, status with regard to public assistance, familial but it may be difficult to offer such responses to 1 status, disability, sexual orientation, or age. For purposes of liability, the source of the hostile work a supervisor, whose power to supervise—[which environment matters. Liability may be imposed on an employer where the harasser is a supervisor, may be] to hire and fire, and to set work schedules manager, fellow employee, or even a third party such as a patron, client, or outside service personnel. and pay rates—does not disappear.2

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When a supervisor harasses an employee, he or Many employers are unaware that they may also negligence.9 Rather than focusing on the conduct she is aided by the agency relationship, which be held liable for the acts of non-employees who itself, courts look at the employer’s behavior in wields him or her power over those being su- create a hostile work environment. Minnesota response to the non-employee’s actions, asking pervised. Due to this relationship, an employer courts have held employers responsible for whether the employer exercised reasonable may be held liable for the actions of supervisors sexual harassment based upon the acts of non- care.10 and managers who abuse that authority to harass employees in two circumstances. The first is a subordinate.3 where the employer places the employee in a Although harassment from managers may work environment that is known to be sexually impose the greatest liability on a company, An employer may also be held liable for the hostile and in which a third party exercises employers should continue to cultivate a work harassing conduct by one non-supervisory control over the employee.5 For example, a environment that is welcoming to everyone. employee against another. Liability typically temporary agency may be sued by its employee This starts with managers and supervisors. arises where the employer, or a supervisor, if the agency knowingly places the employee into Employers should also ensure that one employee knows of the harassing conduct by one employee a sexually hostile work environment.6 within the same rank does not harass another against another and fails to address the conduct and evaluate the liability that may be imposed and properly protect the employee being The second is where the employer knew the from those with whom the company does harassed.4 It is not necessary that the harassed employee was subject to sexual harassment by business. Promoting a culture of reporting employee formally complain to his or her a non-employee, yet failed to take timely and and taking swift action employer. Rather, an employer can be said to appropriate action to protect its employee.7 For to protect harassed employees will limit an have constructive notice if the harassment example, a restaurant can be held responsible employer’s risk of being sued. is so severe and pervasive that management for the acts of customers, a group home for reasonably should have known of it and failed to acts of mentally incapacitated residents, or a Employers Beware: The prevent it. Employees can establish constructive business for the actions of independent sales Actions of Non-Employees notice where the inappropriate conduct is open representatives and consultants.8 In each of these and notorious, the employer received multiple circumstances, although the employer does not Can Create a Racially Hostile complaints in the past, and where management have authority over the non-employee, as soon Work Environment observed the conduct yet allowed it to continue. as it is aware of the sexually hostile actions of the non-employee it has a duty to protect its As a show set in the racially charged 1960s, employee. In this way, liability is grounded in one would expect Mad Men to touch on

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18 HENNEPIN LAWYER JULY/AUGUST 2017 EMPLOYMENT LAW issues of race. While we watch the series with be imposed on them, employee misconduct 11 See Frieler, 751 N.W.2d at 570 (an employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate (or dismay and shake our heads at the treatment is inevitable. In that regard, hostile work successively higher) authority over a victimized employee); Watson, 324 F.3d at of women within the ad agency, minorities are environments are far from a thing of the past. 1259 (“When . . . the alleged harassment is committed by co-workers or customers, a Title VII plaintiff must show that the employer either knew (actual notice) or nearly absent from the workforce altogether. Protections for employees are becoming more should have known (constructive notice) of the harassment and failed to take Although not a focus of the show, minorities have robust as courts find employers liable for failing immediate and appropriate corrective action.”). 12 Rosenbloom, 974 F. Supp. at 743–44. historically faced workplace harassment based to prevent and protect their employees from 13 Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003) (en banc). on a racially hostile environment. The basis for harassment by third parties. 14 14Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir. 1995) (quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983)) (internal quotation marks an employer’s liability is the same with regards omitted) (applying this standard to co-worker harassment). to both a racially and sexually hostile work 15 29 C.F.R. § 1606.8(e). 16 29 C.F.R. § 1606.8(e). environment. An employer can be held liable for actions of supervisors and for failing to prevent 1 Minn. Stat. § 363A.08. harassment by one co-worker against another.11 2 Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 570 (Minn. 2008) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 803 (1998)).. Only until recently have courts addressed the 3 Id. at 570. issue of a racially hostile environment created 4 Id. at 569 (citing McNabb v. Cub Foods, 352 N.W.2d 378, 384 (Minn.1984)). 5 Rosenbloom v. Senior Res., Inc., 974 F. Supp. 738, 743 (D. Minn. 1997). by third parties. 6 Jones v. Blandin Paper Co., No. 31-C5-02-1205, 2003 WL 23816532, at *13 (Minn. Dist. Ct., 2003). 7 Costilla v. State, 571 N.W.2d 587, 592 (Minn. App. 1997). In 1997, the federal district court of Minnesota 8 See, e.g., Lockard v. Pizza Hut, 162 F.3d 1062, 1073 (10th Cir.1998) (restaurant recognized that “[j]ust as in sexual hostile work responsible for acts of customers); Crist v. Focus Homes, Inc., 122 F.3d 1107, 1108 (8th Cir.1997) (group home liable for acts of mentally incapacitated resident); environment cases, there may be circumstances Mutua v. Texas Roadhouse Mgmt. Corp., 753 F.Supp.2d 954 (D.S.D. 2010) (sum- where an employer can be held liable for the mary judgment precluded where restaurant failed to ban racist customers); Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 n. 2 (11th Cir. 2003) (“An employer Dustin W. racially hostile work environment created by may be found liable for the harassing conduct of its customers . . . .”); Little v. a third party.”12 Although no Minnesota courts Windermere Relocation, Inc., 301 F.3d 958, 968 (9th Cir. 2002) (“In this circuit, employers [may be held] liable for harassing conduct by non-employees . . . Massie have directly addressed the issue of employer .”); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001) (“[A]n liability for third-party race discrimination, employer may be responsible for sexual harassment based upon the acts of [email protected] non-employees.”). other courts interpreting Title VII have held 9 See Swenson v. Potter, 271 F.3d 1184, 1191–92 (9th Cir. 2001) (citing Burlington that “an employer cannot avoid Title VII liability Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998)). Mr. Massie is an employment attorney with Baillon 10 See Lockard, 162 F.3d at 1074, citing Hirschfeld v. New Mexico Corr. Dept., Thome Jozwiak & Wanta, representing employees who for [third-party] harassment by adopting a ‘see 916 F.2d 572, 577 (10th Cir. 1990); see also 29 C.F.R. § 1604.11(e) (employer liable have been wrongfully terminated and discriminated no evil, hear no evil’ strategy.”¹³ Instead, they if “fails to take immediate and appropriate corrective action”). against in the workplace. must “take prompt remedial action reasonably calculated to end the harassment.”14

The Equal Employment Opportunity Commission (EEOC), the organization tasked with enforcing federal anti-discrimination laws Why Take in employment, has also ruled that an employer is responsible for the acts of non-employees with respect to harassment of employees based upon Chances? race.15 The key factor in the EEOC’s determination is the extent of the employer’s control and any CALL METRO other legal responsibility the employer may CALL METRO have over the non-employee.16 Although the commission’s ruling is not determinative, LEGAL employers would be wise to ensure that they do not ratify or acquiesce to racial harassment and take immediate and appropriate action as soon as they learn of such conduct. Why trust your process service and courthouse requests to an Unlike Mad Men, which was set in an era untrained, inexperienced delivery person? Let our trained and of revolution and changing social norms, experienced staff of over 80 help you with these and more. employers these days are more in tune with the laws that protect employees and typically take steps to prevent harassment including • Service of Process (locally or nationally) • Searches and Document Retrievals training, orientation, and reporting procedures. • Real Property Recordings • Court Filings • General Courier Service and Mobile Notary Yet they would be wise to look at actions of • Secretary of State Transactions • Skip Tracing and Private Investigations non-employees and ensure that they are not harassing or creating a hostile work environment for their employees. As soon as the employer has knowledge of a sexually or racially hostile work www.metrolegal.com environment, it should take appropriate steps [email protected] to protect the employee or face liability for the (612) 332-0202 actions of third parties.

Although employers are more cognizant of 330 2nd Avenue South, Suite 150 Minneapolis, MN 55401-2217 workplace harassment and the liability that can

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