As a legal matter, sexual harassment is a form of discrimination for which only the employer is liable, not the individual doing the harassing. However, our Minnesota Human Rights Act (MHRA) provides for liability to anyone who “aids and abets” discrimination, which allows harassment claimants to go after the individual harasser as well.
In the case of Rasmussen v. Lou’s Fish House, Case No. 38-CV-10-201 (July 23, 2012), the alleged harasser and the employer were one and the same. Brian Zapolski was the sole owner of a retail store and a small motel on the same property. Three former employees sued Zapolski for sexual harassment, claiming that he subjected them to almost relentless and vulgar sexual behavior, including:
- Asking them about their favorite sexual position and sharing his;
- Discussing sexually explicit dreams with them;
- Showing them naked pictures in a magazine and suggesting that one of the employees resembled a woman in the photos;
- Touching their buttocks or grabbing them around the waist;
- Bragging about his sexual prowess;
- Coarsely commenting about the anatomy of female customers and expressing his desire to have sex with them; and
- Asking the employees to fix him up with friends or relatives so he could have sex with them.
All three employees quit because of Zapolski’s behavior and then sued the company for sexual harassment under the MHRA, as well as Zaposki individually for aiding and abetting. Surprisingly, the trial court ruled against the employees on the grounds that the behaviors they alleged was not severe or pervasive enough to rise to the level of actionable harassment.
On appeal, the Minnesota Court of Appeals ruled that Zapolski’s “raw and explicit” conduct justified a finding of “severe and pervasive” sexually oriented behavior that obviously affected the employees’ terms and conditions of employment since all three quit their jobs to escape the harassment. They therefore ruled against the employer.
At the same time, however, the Court declined to hold Zapolski individually liable for aiding and abetting since that claim requires the individual to have assisted another person in committing illegal discrimination. Since Zapolski was the only person who did anything wrong, it simply was illogical to rule that he assisted himself in discriminating against his employees.
This decision makes perfect sense, but it won’t necessarily insulate most harassers from individual liability. For one thing, many of these cases involve more than one actor, so that one of them could certainly be found to have aided and abetted the other. In addition, where the harasser and employer are one and the same, the courts may find that the protections offered by the corporate shield should be removed, so that the person responsible for the harassment can suffer the consequences. Still it is useful to know that you can’t aid and abet yourself in engaging in wrongful behavior.