In Kenneh v. Homeward Bound, Inc., the Minnesota Supreme Court addressed a long-disputed issue in employment law: whether and how the federal case-created “severe or pervasive” standard applies to claims of hostile environment sexual harassment under the Minnesota Human Rights Act (MHRA). While the Court in Kenneh declined to abandon the federal severe or pervasive standard, it adopted a less stringent one. The court held it would continue applying the severe or pervasive standard but would do so in a manner consistent with the broad remedial purpose of the MHRA.
The court’s decision in Kenneh has and will likely continue to impact claims other than sexual harassment. The potential impact of Kenneh’s severe or pervasive standard on race harassment cases is especially pertinent considering the standard is rooted in race harassment jurisprudence. That is, while the severe or pervasive standard is a federal case-created standard for sex harassment claims, it is based in part on race harassment cases. But as the number of sex harassment claims grew, much of harassment law and its development occurred in sex harassment cases. And its standards, like the severe or pervasive standard, soon became a monolith for all forms of harassment. Race and sex harassment, however, are not interchangeable and have distinct characteristics in terms of how they manifest themselves, the individuals they affect, and how those individuals are impacted.
This Article is the second of two companion articles. This Article examines the potential impacts of the Kenneh decision on MHRA race harassment claims and whether race and sex harassment claims should continue to be analyzed interchangeably and, if so, how the Kenneh principles may apply to race claims. It will examine how Kenneh’s severe or pervasive standard, if applied to race harassment claims, can be used in such a way as to acknowledge the unique aspects of race harassment. Its companion Article provides an important backdrop for that analysis through an examination of the history of harassment law and the severe or pervasive standard from the enactment of the MHRA to the present day.
First, this Article will address how the Kenneh decision broke from federal standards, adopting its own severe or pervasive standard and reaffirming the MHRA’s goal to rid the workplace of harassment. Second, it will consider whether the severe or pervasive standard should apply to race harassment claims. Third, it will examine how the severe or pervasive standard, if applied to hostile environment race harassment claims, can be analyzed in harmony with the distinct characteristics of race harassment. To that end, this Article proposes how several principles set forth in Kenneh may be used to support the development of race harassment law, including:
- The severe or pervasive standard must evolve to reflect changes in societal attitudes toward what is acceptable behavior in the workplace. Therefore, each case pursued under the MHRA must be considered on its facts, not on a purportedly analogous state or federal decision decided years ago;
- A single severe incident of a supervisor’s use of a racial epithet, slur, or racist display should be actionable per se;
- The severe or pervasive standard must evolve to recognize harassment’s more covert and subtle forms, which should include consideration of the plaintiff’s race; and,
- When analyzing whether conduct is objectively offensive at summary judgment, courts must be careful to not usurp the role of the jury. Courts should not dissect, isolate, or re-characterize slurs, conduct, or incidents, thereby rendering “what is likely a horrific emotional experience to a numeric fraction.”
The court in Kenneh recognized the essence of the MHRA—societal change. While there is an apparent shift in societal attitudes toward racial justice issues, observable change has yet to manifest in the workplace. Following Kenneh’s principles is one way to bring that change to fruition. Doing so will allow the severe or pervasive standard to evolve and reflect those current attitudes and beliefs, rather than those from decades ago. This in turn will not only provide redress for injuries caused by race harassment, it will hopefully set a course for social change.