Tag Archive for: sexual harassment

Phillip Kitzer and Brian Rochel both Present at National NELA Employment Law Conference

The National Employment Lawyers Association (NELA) held its Annual Convention in Chicago, Illinois from June 28 through July 1, 2023. NELA is the largest organization of lawyers who represent workers in the United States and is focused exclusively on advancing employee rights and making the workplace better for all Americans.

The Annual Convention is the largest meeting of NELA members each year. The Annual Convention provides several days of intensive, high-quality continuing legal education (CLE) training for employment lawyers. Both Brian Rochel and Phillip Kitzer  were invited to speak at the Convention—an honor that very few members are given.

Brian presented on a panel entitled “Putting Theory Into Practice: Effectively Litigating Age Discrimination Claims.” The panel provided a detailed discussion and strategies for plaintiff’s advocates to use in representing employees in age discrimination claims.

Phillip presented on a panel entitled “25 Years After Faragher-Ellerth.” The panel provided in-depth updates on the state of employment law as it relates to the the use of the “Faragher-Ellerth” affirmative defense in sexual harassment claims.

Phillip and Brian regularly speak on employment law topics and present around the country. If you have questions about employment law please do not hesitate to contact us.

Are Real Estate Agents Protected from Harassment and Discrimination under the Minnesota Human Rights Act (MHRA)?

The Minnesota Human Rights Act (“MHRA” or “Act”) protects individuals from discrimination in the workplace,[1] including sexual harassment as a form of gender discrimination.[2] Workers are further protected against termination, demotion, or other retaliatory employment actions in response to reporting discrimination or sexual harassment.[3] Ultimately, the MHRA was designed to “provide more expansive protections to Minnesotans than federal law,” its provisions intended to be “construed liberally.”[4]

Enacted in 1973, the law under the MHRA is generally well-developed. That said, few cases have been litigated regarding MHRA protections for real estate agents in particular. This gap in litigation has led to a gray zone surrounding the question of whether real estate agents receive MHRA protection for workplace harassment and discrimination.

This question can be answered through two main lenses: (1) by considering real estate agents as employees for purposes of the MHRA or (2) by looking to other subdivisions of the MHRA that grant real estate agents protection regardless of employee status.

The MHRA expressly protects employees from unfair discriminatory practices and retaliation.[5] Courts traditionally look to a variety of factors to determine whether an individual constitutes an employee or an independent contractor.[6] Such factors include, for example, the method of payment, who provides the necessary tools/office space, and the level of control the employer has over the worker.[7] Under Minnesota law, the level of control an employer has over an individual is the most important factor—the more control, the more likely that person constitutes an employee.[8] While the control factor plays heavily into MHRA cases, courts have opted to reframe the analysis as one that examines the economic realities underlying the work relationship to decide “whether the worker is likely to be susceptible to the discriminatory practices Title VII was designed to eliminate.”[9] Given the close working relationship between real estate agents and their brokerages (which agents typically have exclusive contracts with), Minnesota courts would likely consider real estate agents to be employees for purposes of the MHRA, as their position leaves them “susceptible to the discriminatory practices Title VII was designed to eliminate.”[10]

That said, because the MHRA was designed to be widely inclusive, real estate agents may find protection under other sections of the Act regardless of employee status.

The MHRA also prohibits any “person having the right to sell, rent or lease any real property from “discriminat[ing] against any person or group of persons because of … sex … in the terms, conditions or privileges of the sale, rental or lease of any real property or in the furnishing of facilities or services in connection therewith.”[11] Current case law addressing this section of the MHRA primarily concerns the relationship between a seller and buyer or renter of real property.[12] However, the language of the statute prohibiting sex discrimination in connection with real estate services may apply to the broker-agent relationship. As service providers in the real estate industry, real estate agents may fall under the protection afforded by the MHRA.

Similarly, the MHRA prohibits “any real estate broker, real estate salesperson, or employee or agent thereof [from] intentionally engag[ing] in any reprisal against any person because that person opposed” a forbidden.[13] The language “prohibiting reprisal against any person” likely supports any report by a real estate agent of sexual harassment or discrimination as protected, regardless of employee status.

Finally, the MHRA forbids “business discrimination.” In other words, contracting parties cannot “discriminate on the basic terms, conditions, or performance of the contract because of a person’s race, national origin, color, sex, sexual orientation, or disability.”[14] In the agent-broker context, the following examples would constitute business discrimination under the MHRA:

  • A broker or agency’s termination of a real estate agent’s contract because of discriminatory reasons;
  • A broker or agency’s termination of a real estate agent’s contract because the agent reported discrimination or sexual harassment; and
  • A broker or agency offering a contract to a real estate agent contingent on that agent submitting to romantic or sexual advances.

Ultimately, the law governing the broker-agent relationship under the MHRA is slim. While this article provides a general overview of relevant Minnesota law, each case presents unique circumstances that are best analyzed by a practicing employment law attorney.

NOTES:

[1] Minn. Stat. Ann. § 363A.08.

[2] Minn. Stat. § 363A.03, subd. 13.

[3] Minn. Stat. Ann. § 363A.15.

[4] Kenneh v. Homeward Bound, Inc., 944 N.W.2d 222, 229 (Minn. 2020) (quoting Minn. Stat. § 363A.04).

[5] Minn. Stat. Ann. § 363A.08.

[6] Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989).

[7] Abel v. Abbott Nw. Hosp., 947 N.W.2d 58, 75 (Minn. 2020).

[8] Id.

[9] Wilde v. County of Kandiyohi, 15 F.3d 103, 105 (8th Cir. 1994).

[10] Id.

[11] Minn. Stat. Ann. § 363A.09, Subd. 1(2).

[12] See, e.g., Fletcher Props. v. City of Minneapolis, 947 N.W.2d 1, 16 (Minn. 2020) (noting that the refusal to rent property because of public assistance use constitutes an unfair discriminatory practice); Fletcher Props. v. City of Minneapolis, 931 N.W.2d 410, 416 (Minn. Ct. App. 2019) (noting that landlords cannot discriminate against tenants with regard to public assistance status).

[13] Minn. Stat. Ann. § 363A.15.

[14] Minn. Stat. § 363A.17(3); see also Minn. Stat. § 363A.03, subd. 30 (“person” includes partnership, association, [and] corporation . . .”).

Former Employee Awarded $1.1 Million in Verdict for Sexual Harassment Lawsuit

In March 2022, former Chisago County crime analyst Michelle Jacobson was awarded $1.1 million by a jury in her lawsuit against her former employer, Chisago County Sheriff’s Office and former Sheriff Richard Duncan. Ms. Jacobson’s complaint alleged Mr. Duncan sexually harassed her during her employment. Judge Susan Richard Nelson said that Mr. Duncan’s actions were “extreme and outrageous.”

Under the Minnesota Human Rights Act, Minn. Stat. §363A et seq., sexual harassment is recognized as an unfair discriminatory employment practice and is illegal. Ms. Jacobson experienced sexual harassment in the form of sexual advances by her supervisor.

If you have experienced sexual harassment or discrimination the workplace, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

Biden Signs New Law Limiting Arbitration in Sexual Harassment Claims

Employment claims are often subject to arbitration clauses. This means that employees who want to assert their rights and file a lawsuit are forced to arbitrate their claims instead of going to court. While there are some advantages to arbitration, the arbitration process often favors employers and arbitration clauses reduce the options available to employees in pursuing their claims. Arbitration is also private, which means that workers and sexual harassment survivors are not allowed to tell their story or have their case heard publicly.

On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. This new law amends the Federal Arbitration Act to render pre-dispute arbitration clauses unenforceable for sexual assault and sexual harassment claims. This is a step forward in restoring the ability to choose how to pursue these two types of claims.

If you have experienced sexual assault or sexual harassment, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options in light of this new law.

What to do if you experience sexual harassment at work

By now, nearly everyone has heard of the #metoo movement, an effort to fight back against the widespread prevalence of sexual assault and harassment, especially in the workplace. The movement has highlighted the reality that sexual harassment is very common at work. The laws prohibiting sexual harassment are complicated and, unfortunately, there are aspects that hurt victims of sex harassment. For instance, a recent article in the Star Tribune discusses the many hurdles that victims of sexual harassment can face in the courts.

Still, nobody should be forced to endure sexual harassment at work. The more employees talk about sexual harassment and fight back against it, the more we can all do together to help put an end to it.

Here are some tips for what to do if you are experiencing sexual harassment at work:

  • Report it. This is not everyone’s immediate response. Many victims who contact us fear reporting harassment for several reasons. Sometimes the harasser is their boss or a boss’s friend. Or, sometimes a victim believes that reporting harassment to human resources will result in more harassment or retaliation. These concerns are valid and confirmed by thousands of cases across the country. Indeed, we routinely represent victims who report harassment and experience retaliation. Still, the law presumes that employees who experience sexual harassment would, and should, report it. If you report sexual harassment, your employer cannot retaliate against you for doing so. Reporting harassment gives your employer the opportunity to correct the illegal behavior. If it does so, that is good. But, if it fails to do so—or worse—punishes you for reporting it, then it will be legally liable.
  • Do not quit. Many employees who experience sexual harassment want to quit rather than face the unbearable conditions at work. Being forced to work with a harasser, or in a workplace where harassment is condoned is awful. The problem is, if you quit, an employer may have no liability for the harassment or retaliation they caused. The law gives employers several defenses for harassment and retaliation claims. This is a complicated area of law, but, taken overall, the law frequently rewards companies when an employee quits his or her job. Employers can claim that they did not take any action against an employee who quits. Or, an employer may argue that an employee who quits caused their own harm or “damages,” meaning that an employee cannot sue in court to recover for the illegal conduct.
  • Do not confront your harasser. While the law can have hurdles for victims of harassment, you are generally not required to directly confront a harasser. You should follow your employer’s policy to report the harassment. If there is no policy, then report it to human resources or to another boss.
  • Do something—don’t let the harassment get worse. This might seem obvious, but many victims of sexual harassment avoid the problem, minimize the behavior, or just hope that it will stop or go away. Federal law and Minnesota law are clear: No employee should have to put up with sexual harassment. Report harassment right away, and, when in doubt, contact an experienced employment attorney about your options. In our experience, if an employee hopes that harassment will stop but does not do anything about it, the situation gets worse, not better.
  • If you see someone else experiencing harassment, report it. The law also protects employees who report that a coworker is being sexually harassed. Of course, you want to be mindful of your coworker’s wellbeing. But employees should not be forced to endure a workplace where sexual harassment is allowed at all.

These are only some of the many factors to think about if you or someone you know is experiencing sexual harassment. It bears repeating that employment law, especially regarding sexual harassment, is complicated. You should always seek legal advice as soon as you suspect you or another employee are experiencing sexual harassment.

At Teske, Katz, Kitzer & Rochel, we fight for employees everyday, and hope that the current spotlight on sexual harassment helps put an end to a pervasive and disgusting problem facing too many workers today. Contact us to learn more.

Gretchen Carlson Leads Fight against Sexual Harassment and Forced Arbitration at Work

carlson

Gretchen Carlson, Minnesota native and former Fox News star, is featured in an article by Time Magazine on her fight against sexual harassment at work. Carlson was sexually harassed by her boss, Roger Ailes, then Chairman of Fox News. Since taking her legal claims public, she has been a role model for victims of sexual harassment across the U.S. Carlson is quoted in the article, saying “I think this is happening every single day to women in all walks of life and in all different types of corporations. I’ve heard from so many women, from Wall Street to a tiny little town in Alabama. It’s everywhere.”

Carlson’s story helps shed light on the pervasive problem of sexual harassment in employment settings around the country. Sex discrimination, and sexual harassment, remain very real problems in Minnesota and in nearly every city and state in America.

Carlson is also speaking out against forced arbitration in employment agreements and employee handbooks. She has agreed to testify to congress about the problems of forced arbitration. Says Carlson, “It is a huge problem. Because it’s secret. And it plays into why we think that we’ve come so far in society and we probably really haven’t—because we don’t hear about it.”

Minnesota Senator Al Franken is a co-sponsor of a proposed law to ban forced arbitration, a bill that Carlson supports (Senator Patrick Leahy is also co-sponsor). Teske Katz Kitzer & Rochel has been at the forefront of the fight against forced arbitration. Founding partner Vildan Teske has testified to the U.S. Senate against forced arbitration, has worked with Senator Franken on this important issue, and has been quoted in the media on forced arbitration for consumers.

If you have questions about sexual harassment, have been harassed at work, or would like to learn more about the fight against forced arbitration, contact Teske Katz Kitzer & Rochel today.