While ordinarily devoted to reviewing recent rulings of the Federal and state courts in Minnesota affecting practice of law in this state, this column on occasion, however, strays to look at other matters of interest to the bench and bar.

The pendency of two high profile cases before the Minnesota Supreme Court dealing with recurring subjects of workplace law provides an opportune time to look forward, rather than backward.  The two cases, heard on consecutive Mondays in March by the justices in St. Paul, will probably be decided later this spring or early summer.

Here’s a prospective perspective on both of them.

Public policy

The doctrine of “public policy,” which has not been enamored by the Supreme Court, is before the justices, again, in the context of unemployment compensation law in Dukovitz v. Hannon Security Services, No. A-11-1481 (March 4, 2013).  The appeal raises the issue whether retaliating against employees because an employee filed an unemployment compensation claim gives rise to a civil cause of action for wrongful termination on public policy grounds.  The claimant says it does, but a Stearns County District Court disagreed, as did the Court of Appeals, 815 N.W.2d 848 (Minn. App. 2012).  E.g., De Noto v. Sears Imported Autos, Inc., 2012 WL 1149350 (Minn. App. 2012)(unpublished).  rev. denied (Minn. July 17, 2012).

The case arose when a worker for a temporary service organization, whose hours were reduced, filed a claim for unemployment compensation benefits.  She later was recalled to work but, once her employer found out about the unemployment claim, it fired her.  This prompted her to sue for wrongful discharge due to retaliation.

The appellate court, affirming the lower court, reasoned that the unemployment compensation statute does not contain an anti-retaliation provision, unlike some other workplace statutes.  In the absence of an expressed prohibition of retaliation, there is no basis for an implied civil cause of action.

The case raises an issue of first impression for the Minnesota courts.  But the “public policy” predicate for the suit is one that has not been embraced by the justices in past litigation, including whistleblower claims.  E.g. Denoto v. Sears Imported Auto, Inc, 2012 WL 1149359 (Minn. App. 2012), rev. denied (Minn. July 17, 2012).  The Court has deemed the outcome to contain too many vagaries to provide an actionable framework in union contracts.

Nor have they been eager to imply unexpressed statutory civil causes of action.  Becker v. Mayo Foundation, 737 N.W.2d 200 (Minn. 2007).  They have been reluctant to find cases that satisfy the three-part standard for such claims:  that the claimant belongs to the class that the statute is intended to benefit; that the legislature intended a private claim despite statutory silence; and that doing so would be consistent with the underlying purpose of the law.

The appellate court, in denying the claim, found all three prongs lacking, noting that the purpose of the unemployment compensation system is to provide “money” for jobless individuals, not a cause of action to fire their employees.

These past impediments pose significant obstacles to the claimant in convincing the Justices to allow the claim to proceed.  On the other hand, the case may be propelled by the growing concern over employer retaliation, which has become the fastest growing type of discrimination claim.  These two tenets converge as the court deliberates Dukovitz dilemma.

In addition, the Court will consider whether a losing party’s indigence should be taken into account in taxing costs and disbursements.  Generally, the taxation has been deemed mandatory, irrespective of the financial condition of the losing party or, for that matter, the affluence of the prevailing litigant.

‘Hostile’ harassment

A quantum of evidence to establish misbehavior to create a hostile work environment for a sexual harassment claimant under the Minnesota Human Rights Act was at issue in Rasmussen v. Two Harbors Fish Company, No. A11-2178, (March 11, 2013).  A Lake County District Court in a bench trial found that the conduct of an employer, a sole owner of a business, was inappropriate as to three female employees, but not sufficiently severe enough to establish a “hostile workplace” under the harassment law.  This led to a determination in favor of the employer.

The appellate court, after painstaking review, reversed.  It held that the conduct was sufficiently “severe” to create a hostile workplace as a matter of law, citing repeated sexual comments, questions about preferred sexual positions, description of explicit sexual dreams, and a variety of graphic, explicit sexual terminology.  The owner also displayed nude photos; suggested employees watch a pornographic video he brought to work, and inappropriate physical context, among other indignities.  The appellate court deemed this misbehavior to constitute “unwelcome sexual harassment” as a matter of law, contrary to the trial court’s findings.

The Supreme Court will now address the issue, along with a related question of whether a sole owner of a business may be liable for aiding and abetting a sexual harassment claim under the Human Rights Act.

The outcome of these cases is, of course, uncertain, but the rulings will doubtlessly affect many employers, employees, and their advocates in the workplace for many years ahead.

The 1960’s quartet of the “Mamas and Papas lamented “Monday, Monday” in one of their classic songs.  It remains to be seen which of the litigants will bemoan the upcoming rulings following the consecutive Monday hearings in March.

Originially published in the April 15, 2013 edition of Minnesota Lawyer.