OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVII NUMBER VII AUGUST 2020 www.mnbar.org Paskert and Kenneh The ‘severe or pervasive’ harassment standard in 2020 Lillehaug’s lasting legal legacy A federal misstep on Minn. Stat. §549.191 Covid-19, Trump, and employment immigration A FREE WEEK OF WEBINARS FOR MSBA MEMBERS! AUGUST 24 - 27 Register online at: www.mnbar.org/cle-events Free! CLE PROGRAM LINE-UP MONDAY, AUGUST 24 TUESDAY, AUGUST 25 WEDNESDAY, AUGUST 26 THURSDAY, AUGUST 27 8 AM 8 AM 8 AM 8 AM Free and Low-Cost Easy-to-Learn Easy Document Legal Business Resources from Advanced Legal Assembly as Usual the MSBA Research Strategies and Automation (Topic, TBD) Noon Noon Noon Introduction to Noon Live Replay: Internet Legal Research Unbundled Free and Low-Cost Security Basics (Using the New Tools) Legal Services Resources from the MSBA ® Welcome ANTHONY S. NIEDWIECKI PRESIDENT AND DEAN “I’m thrilled to be joining Mitchell Hamline. This school is one of the leading innovators in legal education, and I admire its focus on real-world preparation, commitment to students, and connection to community. I look forward to helping us continue to be a force for justice.” mitchellhamline.edu/dean OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVII NUMBER VII AUGUST 2020 www.mnbar.org ON THE COVER PASKERT AND KENNEH 24 The ‘severe or pervasive’ standard in 2020 Minnesota moves forward on workplace harassment; the 8th Circuit doubles down BY SHEILA ENGELMEIER AND HEATHER TABERY 4 President’s Page “Ordinary equality” BY DYAN EbeRT 14 History: The Minnesota LILLEHAUG’S LASTING LEGAL LEGACY Woman Suffrage Association Departed from the state Supreme Court after BY ERIC W. WebeR seven years, Justice David Lillehaug has made a deep and long-lasting mark on Minnesota law. 6 Professional Responsibility BY MARshAll H. TANICK Challenging clients in challenging times BY SUSAN HUMISTON 8 Law & Technology Is your data retention policy helping or hurting? 18 BY MARK LANTERMAN A MISSTEP ON §549.191 Why recent federal courts in Minnesota are 10 New Lawyers wrong in refusing to apply Minn. Stat. §549.191 Dear managing partner: The to punitive-damages claims in federal court. view from an associate’s desk BY JEFFREY P. JUSTMAN, TOM PRYOR BY LYNAE TUCKER AND JOshUA N. TURNER 12 Colleague Corner Meet Kyle Willems 33 Notes & Trends Landmarks in the law 30 47 People & Practice COVID-19, TRUMP, AND Member announcements EMPLOYMENT IMMIGRATION 2020 has been a year like no other for 48 Opportunity Market employers and their lawyers. Classified ads BY RObeRT P. WebbeR AND CANdelARIO ARRedONDO 2 Bench&Bar of Minnesota s August 2020 www.mnbar.org Official publication of the Minnesota State Bar Association www.mnbar.org | (800) 882-6722 Editor Steve Perry [email protected] Art Director Jennifer Wallace Advertising Sales Pierre Production & Promotions, Inc. (763) 497-1778 MSBA Executive Council President Dyan J. Ebert President-elect Jennifer A. Thompson WHEN PERFORMANCE COUNTS Treasurer Paul D. Peterson Secretary Guardianship Paul Floyd Certiorari Repl New Lawyers Chair Kyle Willems atorship Guardianship Chief Executive Officer Certiorari Repl evin Cheryl Dalby atorship Guardianship Judgment Publications Committee Attachment CertiorariWith over 40 yearsRepl experienceevin Sheri PJT hasff beenIndemnity Minnesota’s surety bonding specialist. With the knowledge, experience Chairperson atorship Guardianship Judgment Rece Carol K. Lee and guidance law fi rms expect from a bonding company. Attachment Certiorari Repl evin Sheri ff Indemnity Steven P. 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WE’D LIKE TO HEAR FROM YOU: To query potential articles for Bench & Bar, or to pass along your comments on matters related to the profession, the MSBA, or this magazine, write to editor Steve Perry at [email protected] or at the postal address above. www.mnbar.org August 2020 s Bench&Bar of Minnesota 3 President’sPage | BY DYAN EBERT “Ordinary equality” ugust 2020 marks the 100th anniversary of a historic change to the U.S. Constitu- tion, the ratification of the A19th Amendment. The substance of the amendment—a mere 28 words— provides “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” As Carrie Chapman Pratt, a prominent figure in the women’s suffrage movement, noted, “The vote is the emblem of your equality, women of America, the guarantee of your liberty.” While the battle for the right to vote actually began many years before, the 1848 Seneca Falls convention marked a turning point in the women’s suffrage movement. The convention resulted in the adoption of the “Declaration of Sentiments,” which called for equality Minnesota Woman Suffrage Group at Headquarters, 1917 – Library of Congress, Harris & Ewing Collection between the sexes, including the right to vote. Over the next seven decades, suffrage supporters tirelessly lectured, What is often overlooked about this ing the importance of protecting this wrote, marched, lobbied, and practiced historic event, however, is that while the “emblem of equality.” civil disobedience in an effort to secure amendment opened the door for women One way lawyers can help protect that right.1 The 19th Amendment was to share their voices in the political pro- the right to vote is to volunteer as elec- officially certified by the Secretary of cess, the harsh reality is that it did little tion judges. According to the Secretary State on August 26, 1920. With its to advance this same opportunity for of State’s Office, Minnesota requires ratification, the face of the American women of color in our country. After the approximately 30,000 election judges electorate was forever changed. In the amendment’s passage, a number of voter to work at the roughly 3,000 polling November 1920 elections, more than 8 suppression measures persisted or were places for each statewide election. Elec- million women newly implemented across the coun- tion judges perform many functions, in the United try—particularly in the south, which from greeting and registering voters to States voted for limited Black women’s access to ballot distributing ballots and helping with vote the first time.2 boxes by means that included poll taxes, tabulation. The need for election judges The impor- literacy requirements, and grandfather in 2020 is anticipated to be greater than tance of the clauses. Indigenous women and Latinas ever due to the challenges created by 19th Amend- met a similar fate. The struggle for voter covid-19. Many individuals who have ment has not equality for these citizens persisted for previously served as election judges are been forgotten. decades despite the passage of the 19th retirees. Because individuals in this age In fact, a Gallup Amendment, and similar although less group are more vulnerable to covid-19, it DYAN EBERT poll conducted overt efforts aimed at limiting poll access is likely to affect their ability to serve in is a partner at the at the end of the for people of color persist today. the upcoming primary election in August central Minnesota 20th century re- As we look toward the 2020 election, and the general election in November. firm of Quinlivan & vealed that pas- I firmly believe that as lawyers we have If you are able and willing to serve as Hughes, P.A., where sage of the 19th a unique opportunity to play an impor- an election judge, I encourage you to she served as CEO Amendment was tant role in protecting, advocating for, contact the Secretary of State’s Office from 2003-2010 and observed to be and highlighting the significance of the for more information. The MSBA is cur- 2014-2019. She also “one of the most right to vote, not just for women but for rently exploring options for securing CLE served on the board of important events all eligible voters. While lawyers clearly credit for special training that may be of- directors of Minnesota in the century,” have divergent positions on political fered to attorneys interested in this role; CLE from 2012-2019.