The two primary statutes that protect Minnesotans against race-based harassment in the workplace are the Minnesota Human Rights Act (“MHRA”), enacted in 1955, and Title VII of the Civil Rights Act of 1964. Since their enactment, courts have seemingly narrowed their protections and applied increasingly stringent standards. One such standard is the “severe or pervasive” standard, a federal case created measure used to determine whether workplace harassment in a given case is actionable.
The Minnesota Supreme Court, however, recently diverged from this trend in Kenneh v. Homeward Bound, Inc. In Kenneh, a sex harassment case decided in 2020, the Court “clarif[ied] how the severe or pervasive standard applies to claims arising under the Human Rights Act.” In so doing, the court appears to have guided lower courts to apply a less stringent standard to MHRA claims than federal courts apply to Title VII claims. Though Kenneh addressed sex harassment, it is expected to affect race harassment jurisprudence because race and sex claims are analyzed under the same framework.
This Article is the first of two companion articles. Its companion examines potential impacts of the Kenneh decision on MHRA race harassment claims and examines whether race and sex harassment claims should continue to be analyzed interchangeably and, if they are, how the Kenneh principles may apply to race claims. This 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 Minnesota Human Rights Act to the present day.
Specifically, this Article will show how federal courts first recognized harassment as a form of discrimination in the context of race and how that concept was mostly developed in the context of sex harassment, including the creation of the severe or pervasive standard. Then, it will show how this standard became a seemingly insurmountable hurdle for plaintiffs to clear in the federal courts. Because Minnesota courts often relied on “analogous” federal Title VII cases, it was not long before Minnesota courts were relying on federal cases and the severe or pervasive standard sometimes at the expense of the plain language and purpose of the MHRA.