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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Sexual Harassment

A claim under the Minnesota Human Rights Act for sexual harassment must relate to conduct that is “sexual” in nature, not simply gender-based.  The Minnesota Court of Appeals recently made that point, in an unpublished decision, upholding summary judgment by the Sherburne County District Court of a lawsuit brought by an employee who asserted that her boss made comments derogatory to women in general and in the workplace and gave men preferential treatment over female employees.  The claim was not actionable, the court held in LaMont v. Independent School District #728, 2011 WL 292131 (Minn. App. 2011) (unpublished), because the “unambiguous” language under the Human Rights Act, Minn. Stat. §363A.03, subd. 13, requires that actionable behavior be “of a sexual nature,” rather than solely gender-based.  Claimants and their attorneys, therefore, should make sure that they allege and prove that either comments or other conduct was of a “sexual nature,” instead of only being gender-related.  The latter may give rise to a discrimination claim, but not one for harassment.  Those defending such claims may point out that the assertions or evidence fall short of being “sexual in nature,” even if they are continuously gender-biased.

Marshall H. Tanick

Mansfield, Tanick & Cohen, PA

mtanick@mansfieldtanick.com

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