Minnesota Supreme Court Contemporizes and Retains Severe-or-Pervasive Standard for Sexual Harassment Cases Brought Under the Human Rights Act


In Kenneh vs. Homeward Bound, Inc., 2020 WL 2893352 (Minn. S. Ct. 2020), the Minnesota Supreme Court rendered a decision in a human rights violation case.  Kenneh sued her former employer, Homeward Bound, for sexual harassment in violation of the Minnesota Human Rights Act.  Minnesota courts have followed federal case law interpreting Title VII of the 1964 Civil  Rights Act, 42 U.S.C. § 2000e (2018) for the severe-or-pervasive standard for analyzing the objective component of a claim for sexual harassment.  If the harassment was so severe-or-pervasive to violate Title VII, it, too, logically violated the Minnesota Human Rights Act.  The Minnesota Supreme Court declined to abandon that severe-or-pervasive standard, as urged by the plaintiff, in Kenneh.  What the Minnesota Supreme Court did do, however, was find that the facts alleged by Kenneh were severe-or-pervasive that a reasonable person may find the work environment hostile or abusive.


Over many months, Kenneh detailed multiple incidents of sexual harassment from a co-worker.  She reported these incidents to her supervisor.  While the Human Resources people investigated and interviewed both Kenneh and the offending employee, the human resources department determined that their investigation was inconclusive.  The sexual harassment continued after the investigation and after the employer conferred with the offending employee.  Kenneh again complained to her supervisor to no avail.  Eventually, the employer terminated Kenneh.

Trial Court, Court of Appeals and Supreme Court

On Kenneh’s sexual harassment claim, the trial court found that Kenneh did not allege conduct severe-or-pervasive for actionable sexual harassment.  The Court of Appeals affirmed.  The Minnesota Supreme Court noted that, unlike the federal Civil Rights Act, the Minnesota Human Rights Act defines sexual harassment.  The Supreme Court also noted that the Minnesota Human Rights Act provides more expansive protection than the federal Civil Rights Act.  The Minnesota Supreme Court noted as follows:

The severe-or-pervasive standard reflects a common sense understanding that, to alter the conditions of employment and create an abusive working environment, sexual harassment must be more than minor:  “The work environment must be both objectively and subjectively offensive and that a reasonable person would find the environment hostile or abusive and the victim in fact perceived it to be so.”

Citing LaMont v. Indep. Sch. Dist. No. 728, 814 N.W.2d 14 (Minn. 2012).  The Minnesota Supreme Court refused to overrule its precedent establishing the severe-or-pervasive standard.  It did, however, evolve.  It noted that “societal change” had occurred in the last three decades and that reasonable people would not tolerate the behavior of the miscreant employee against Kenneh.  In essence, the Minnesota Supreme Court was again stating that summary judgment was “blunt” and should not have been used to dismiss Kenneh’s sexual harassment, human rights claims.  Relying on Montemayor v. Sebright Products, Inc. 898 N.W.2d 623, 628 (Minn. 2017), the Minnesota Supreme Court noted that summary judgment dismissing the sexual harassment claims was not appropriate.  So, in human rights cases, as with tort cases, the Minnesota Supreme Court is clearly indicating that dismissals by summary judgment ought to be rarely granted.  Fenrich v. The Blake School, 920 N.W.2d 195 (Minn. 2018) school owed a duty of care for student driving to an out of state running competition; Senogles v. Carlson, 902 N.W.2d 38 (Minn. 2017) premises owner owed a duty of care to small child visiting land on Mississippi River; Warren v. Dinter, 926 N.W.2d 370 (Minn. 2019) a hospitalist, who discussed a patient’s medical condition with a nurse practitioner at a different facility but not with the patient herself, owed a duty of care to the patient; Soderberg v. Anderson, 922 N.W. 2d 200 (Minn. 2019) no primary assumption of the risk when ski instructor hit by snowboarder.


Summary judgment has traditionally been a tool in counsel’s toolbox to dismiss and dispose of some or all claims in a given civil lawsuit.  Employers and those defending human rights claims need to be careful.  They need to retain counsel skilled in developing a record setting up dismissal motions and to guide and counsel employers through employment and human rights lawsuits.  Lommen Abdo has a full bench of outstanding and very experienced trial lawyers fully capable of providing such counsel and advice.