Sexual Harassment Can Be Unlawful Even if Directed at Members of Both Sexes

06/05/2013 / Andrew D. Moran

A long standing, albeit not always successful, defense in sexual harassment cases has been to assert that the harasser was equally offensive to both men and women, and that therefore the harassment was not “sexual.” The Minnesota Supreme Court recently considered this “equal opportunity harasser” defense, in Rasmussen v. Two Harbors Fish Co. d/b/a Lou’s Fish House, and held that former employees’ claims against their employer for hostile work environment sexual harassment may be advanced even where: (1) the sexually explicit conduct of the employers’ owner was directed at both males and females; and (2) the former employees did not experience any adverse employment actions in terms of promotions, pay or hours. 
 
Jaime Rasmussen, Jennifer Moyer, and Kathe Reinhold filed a lawsuit alleging that their former employers, Two Harbors Fish Company and BWZ Enterprises violated the Minnesota Human Rights Act (MHRA) based on sexual harassment perpetrated by Brian Zapolski, who is the sole owner of both entities. Zapolski’s conduct included asking the women about their sexual preferences and sex life, using sexually explicit language, and engaging in unwanted touching. The district court had dismissed the plaintiffs’ claims ruling, in part, that Zapolski’s conduct did not create a hostile work environment because he acted similarly toward both men and women. In addition, the plaintiffs did not lose salary or work hours for failing to participate in sexual acts or conversations. The district court also found that Zapolski could not be held individually liable for aiding and abetting harassment under the MHRA. 
 
The Supreme Court ruled that the employers may be held liable for Zapolski’s sexual harassment even though he engaged in similar conduct with respect to both males and females. In reaching its conclusion, the Court stated a sexual harassment claim does not require proof that the conduct was directed at the victims because of sex and, relying on an earlier opinion, noted that a plaintiff need not show that harassment was based on sex in that the “harassment affected one gender differently than the other.” Thus, it held the employers could not escape liability for Zapolski’s sexual harassment merely because he behaved similarly toward male and female workers. 
 
The district court also erred in ruling that the plaintiffs needed to show some adverse employment action in order to prevail on a claim for hostile work environment sexual harassment. The MHRA prohibits both “quid pro quo” sexual harassment, in which submission to or rejection of sexually harassing conduct is used as a factor in employment decisions, as well as hostile work environment sexual harassment in which the harassing conduct creates an intimidating, hostile, or offensive employment environment. While the issue of an adverse employment action is relevant in a “quid pro quo” claim, a hostile work environment claim does not require a showing of loss of pay, hours, or other employment benefits to succeed. 
 
The Supreme Court agreed that Zapolski could not be individually liable for aiding and abetting harassment under the MHRA where he was both the harassing individual and the sole owner of the employers. A 4-3 majority of the Supreme Court ordered that the case be remanded and directed the district court to reevaluate the evidence using the correct legal standards.  
 
This decision highlights the importance of workplace policies prohibiting any harassment that is sexual in nature, not just harassment aimed at members of the opposite sex, as employers cannot escape liability for sexual harassment simply because the offending party harasses everybody. Of course, harassment is prohibited by statute on other bases as well, such as race, religion, national origin, etc. Employers should promptly investigate claims of harassment and be prepared to take action even when an alleged victim has not suffered any loss of pay, hours, or other employment benefits.