Kathleen Bray

In a recent case, the Minnesota Supreme Court adopted the liabilities standard established in the Federal case of Burlington Industries, Inc. v. Ellerth & Faragher v. City of Boca Raton. In this decision, an employer is subject to vicarious liability for an actionable hostile environment created by a supervisor. However, if there is no tangible employment action taken against the employee, the employer may raise an affirmative defense to liability, if it proves by a preponderance of evidence (1) that the employer exercised reasonable care to prevent and correct any sexual harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm, such as following reporting procedures. The Court also adopted the EEOC’s expansive view of who is a supervisor for purposes of sexual harassment, including not only individuals who have authority to direct an employee’s daily work activities, but also one who has authority to undertake tangible employment decisions affecting the employee. In the case at hand, the person determined to be a supervisor was one of several persons who could make a decision on whether or not the employee would be given a promotion. Frieler v. Carlson Marketing Group, Inc. (Minn. Sup. Ct. 2008).