No. A19-0461

STATE OF MINNESOTA

IN SUPREME COURT

Meagan Abel,

vs.

Appellant,

Abbott Northwestern Hospital, et al.,

Respondents,

St. Mary's University Minnesota,

Respondent.

BRIEF OF AMICUS CURIAE

COMMISSIONER OF THE MINNESOTA DEPARTMENT

OF HUMAN RIGHTS

MADEL PA

Christopher W. Madel (#230297)

Ellen M. Ahrens (#391004)

Matthew J.M. Pelikan (#393065)

800 Hennepin Avenue

800 Pence Building

Minneapolis, MN 55403

(612) 605-0630

ATTORNEYS FOR APPELLANT

MEAGAN ABEL

KEITH ELLISON

Attorney General

Rachel Bell-Munger

Assistant Attorney General

Atty. Reg. No. 0395962

445 Minnesota Street, Suite 1400

St. Paul, Minnesota 55101-2131

(651) 757-1272 (Voice)

rachel.bell-munger@ag.state.mn.us

ATTORNEYSFORAMICUSCURIAE

COMMISSIONER OF THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS

(Additional counsel listed on following page)

DORSEY & WHITNEY LLP

Melissa Raphan (#182795)

John T. Sullivan (#390975)

Briana Al Taqatqa (#399716)

50 South Sixth Street, Suite 1500

Minneapolis, MN 55402-1498

(612) 340-2600

ATTORNEYS FOR RESPONDENTS

ABBOTT NORTHWESTERN HOSPITAL

AND ALLINA HEALTH SYSTEM

MCCOLLUM, CROWLEY, MOSCHET,

MILLER & LAAK, LTD.

Robert L. McCollum, I.D. #69802

Cheryl Hood Langel, I.D. #220012

Brian J. Kluk, I.D., #0396320

7900 Xerxes Avenue South, Suite 700

Minneapolis, MN 55431

(952) 831-4980

ATTORNEYS FOR RESPONDENT SAINT

MARY'S UNIVERSITY OF MINNESOTA

GENDER JUSTICE

Christy L. Hall

MN No. 392627

200 University Avenue West, Suite 200

St. Paul, MN 55103

(651) 789-2090

ATTORNEY FORAMICUS CURIAE

GENDER JUSTICE

FABIAN MAY & ANDERSON, PLLP

Nicholas G.B. May (No. 287106)

' 1625 Medical Arts Building

825 Nicollet Mall

Minneapolis, MN 55402

(612) 353-3340

NICHOLS KASTER, PLLP

Matthew A. Frank (No. 395362)

4600 IDS Center

80 South Eighth Street

Minneapolis, MN 55402

(612) 256-3200

BAILLON THOME JOZWIAK & WANTA

LLP

Frances E. Baillon (No. 028435X)

100 South Fifth Street, Suite 1200

Minneapolis, MN 55402

(612) 252-3570

and

TESKE KATZ KITZER & ROCHEL, PLLP

Brian T. Rochel (No. 391497)

Phillip M. Kitzer (No. 390441)

222 South Ninth Street, Suite 4050

Minneapolis, MN 55402

612) 746-1558

ATTORNEYS FORAMICUS CURIAE

MINNESOTA CHAPTER OF THE

NATIONAL EMPLOYERS LAWYERS

ASSOCATION

1

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................................ ii

LEGAL ISSUES ......................................................................................................................... 1

STATEMENT OF INTEREST ............................................................................................ 2

ARGUMENT ........................................................................................................................ 3

I. THE COURT OF APPEALS INCORRECTLY APPLIED THE LIMITATIONS PERIOD

UNDER THE MINNESOTA HUMAN RIGHTS ACT .................................................................. 4

A. The MHRA Limitations Period ...................................................................... 5

B. Hostile Environment Claims .......................................................................... 6

C. The Court Of Appeals Erred In Its Analysis Of The Limitations

Period For A Hostile Environment Claim ..................................................... 9

1. The Court Should Consider The Temporal Scope Of The

Hostile Environment As A Whole Before Dismissing A

Claim As Unti1nely .............................................................................. 10

2. Failing To Correct A Hostile Environment May Constitute

Conduct Contributing To The Hostile Environment. ........................ 13

II. A CLAIM THAT A HOSTILE ENVIRONMENT CAUSED AN EMPLOYEE TO

RESIGN MAY BE TIMELY IF THE LAST DAYS OF THE HOSTILE

ENVIRONMENT FALL WITHIN THE LIMITATIONS PERIOD ............................................. 17

III. THE COURT SHOULD CONSTRUE THE MHRA TO PROTECT UNPAID

WORKERS AND STUDENTS PERFORMING UNPAID WORK As A

REQUIREMENT OF THEIR EDUCATION ................................................................................ 20

IV. THE MHRA'S EXCLUSIVITY PROVISION SHOULD NOT UNDULY RESTRICT

AN INDIVIDUAL'S ABILITY TO BRING COMMON LAW CLAIMS ................................... 24

CONCLUSION ...................................................................................................................26

CERTIFICATION OF LENGTH OF DOCUMENT .........................................................27

11

TABLE OF AUTHORITIES

Page

FEDERAL COURT CASES

Burlington Indus. v. Ellerth,

524 U.S. 742 (1998) .......................................................................................................... 15

Burns v. McGregor Elec. Indus., Inc.,

955 F.2d 559 (8th Cir. 1992) ....................................................................................... 8, 9

Clark Cty. Sch. Dist. v. Breeden,

532 U.S. 268 (2001) ........................................................................................................ 8

Cortes v. Maxus Exploration Co., 977 F.2d 195 (5th Cir. 1992) ......................................................................................... 14

Draper v. Coeur Rochester, Inc.,

147 F.3d 1104 (9th Cir. 1998) ......................................................................................... 9

Faragher v. City of Boca Raton,

524 U.S. 775 (1998) ...................................................................................................... 15

Graves v. Women's Prof'l Rodeo Ass 'n, Inc.,

907 F.2d 71 (8th Cir. 1990) ..................................................................................... 21, 22

Green v. Brennan, 136 S. Ct. 1769 (2016) .................................................................................. 1, 18, 19, 20

Harris v. Forklift Sys., Inc.,

510 U.S. 17 (1993) ............................................................................................................... 8

Hukkanen v. Int'l Union of Operating Eng'rs, Hoisting & Portable Local No.

IOI,

3 F.3d 281 (8th Cir. 1993) ........................................................................................ 18, 19

Jacob-Mua v. Veneman,

289 F.3d 517 (8th Cir. 2002) ...................................................................................21, 22

Jensen v. Henderson, 315 F.3d 854 (8th Cir. 2002) .......................................................................11, 14, 17, 18

Kimzey v. Wal-Mart Stores, Inc.,

107 F.3d 568 (8th Cir. 1997) ......................................................................................... 14

111

Lapka v. Chertojf,

517 F.3d 974 (7th Cir. 2008) ........................................................................................ 14

Lorance v. A T & T Technologies, Inc.,

490 U.S. 900 (1989) ...................................................................................................... 12

Miller v. Woodharbor Molding & Millworks, Inc.,

174 F.3d 948 (8th Cir. 1999) ........................................................................................... 9

Nat'l R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002) ............................................................................................... passiln

Penn. State Police v. Suders,

542 U.S. 129 (2004) ...................................................................................................... 18

Sanders v. Lee Cty. Sch. Dist. No. 1,

669 F.3d 888 (8th Cir. 2012) .......................................................................................... 14

United Air Lines, Inc. v. Evans,

431 U.S. 553 (1977) ...................................................................................................... 12

Vickers v. Powell,

493 F.3d 186 (D.C. Cir. 2007) ...................................................................................... 14

Zetwick v. Cty. of Yolo,

850 F.3d 436 (9th Cir. 2017) ........................................................................................... 9

STATE COURT CASES

Abel v. Abbott Nw. Hosp.,

No. Al9-0461, 2019 WL 4745372 (Minn. Ct. App. Sept. 30, 2019)

(unpublished) ...........................................................................................................10, 13, 25

Bhd. of Ry. and S.S. Clerks, Freight Handlers, Express and Station Emps., Lodge

364 v. State by Balfour,

229 N.W.2d 3 (Minn. 1975) ............................................................................................ 5

Baily v. Comm 'r of Econ. Sec.,

544 N.W.2d 295 (Minn. 1996) ......................................................................................22

Cont'! Can Co. v. State,

297 N.W.2d 241 (Minn. 1980) ..................................................................................... 18

Cummings v. Koehnen,

568 N.W.2d 418 (Minn. 1997) ................................................................................... 7, 8

IV

Danz v. Jones,

263 N.W.2d 395 (Minn. 1978) ..................................................................................... 18

Goins v. W Grp.,

635 N.W.2d 717 (Minn. 2001) ........................................................................................ 8

Guhlke v. Roberts Truck Lines,

128 N.W.2d 324 (Minn. 1964) ...................................................................................... 22

Frieler v. Carlson Mktg. Grp., Inc.,

751 N.W.2d 558 (Minn. 2008) .............................................................................. 14, 15, 19

Hubbard v. United Press Int'!, Inc.,

330 N.W.2d 428 (Minn. 1983) .................................................................................... 5, 6

LaMont v. Indep. Sch. Dist.,

No. 728,814 N.W.2d 14 (Minn. 2012) ........................................................... 7, 8, 12, 23

Rasmussen v. Two Harbors Fish Co.,

832 N.W.2d 790 (Minn. 2013) ................................................................................... 3, 8

Sigurdson v. Isanti Cty.,

448 N.W.2d 62 (Minn. 1989) ......................................................................... 5, 6, 11, 12

Turner v. IDS Fin. Servs., Inc.,

471 N.W.2d 105 (Minn. 1991) ...................................................................................... 20

Vaughn v. Nw. Airlines, Inc.,

558 N.W.2d 736 (Minn. 1997) ..................................................................................... 25

Wangen v. City of Fountain,

255 N.W.2d 813 (Minn. 1977) ............................................................................... 22, 23

Williams v. St. Paul Ramsey Med. Ctr., Inc.,

551 N.W.2d 483 (Minn. 1996) ..................................................................................... 24

Wirig v. Kinney Shoe Corp.,

461 N.W.2d 374 (Minn. 1990)................................................................................ 24, 25

STATE STATUTORY AUTHORITIES

Minn. Stat. ch. 363A (2018) ........................................................................................ passim

Minn. Stat. § 363A.02 (2018) .......................................................................................... 2, 3

Minn. Stat. § 363A.03 (2018) ..................................................................................... passim

V

Minn. Stat. § 363A.04 (2018) .............................................................................. 1, 3, 24, 25

Minn. Stat. § 363A.06 (2018) .............................................................................................. 2

Minn. Stat.§ 363A.08 (2018) ......................................................................................... 1, 21

Minn. Stat.§ 363A.13 (2018) ......................................................................................... 1, 17

Minn. Stat. § 363A.20 (2018) ............................................................................................ 21

Minn. Stat.§ 363A.26 (2018) ............................................................................................. 21

Minn. Stat. § 363A.28 (2018) .......................................................................................... 2, 5

Minn. Stat. § 363A.33 (2018) ...................................................................................... 5, 6, 8

STATE RULES AND REGULATIONS

Minn. R. 5000.0400 (2019) .................................................................................................. 5

Minn. R. Civ. P. 12 ............................................................................................................... 3

Minn. R. Civ. App. P. 129.03 ............................................................................................... 2

OTHER AUTHORITY

2 EEOC Compliance Manual (Aug. 2009) ........................................................................ 23

1

LEGAL ISSUES

I. Whether Appellant Meagan Abel's claims under the Minnesota Human Rights Act,

Minn. Stat. ch. 363A (2018) ("MHRA"), are timely?

The district court held that Abel's MHRA claims were time-barred. The court of

appeals affirmed.

Most apposite authorities:

Minn. Stat. § 363A.03 (2018)

Green v. Brennan, 136 S. Ct. 1769 (2016)

Nat'! R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)

II. Whether the MHRA protects students engaged in unpaid internships as a

requirement of their education?

The district court held that Abel was not an employee under the MHRA. The court

of appeals did not reach the issue.

Most apposite authorities:

Minn. Stat.§§ 363A.03, 363A.08, 363A.13 (2018)

III. Whether Abel can maintain her negligence claims against the defendants?

The district court held that Abel could not maintain her negligence claims. The

court of appeals affirmed.

Most apposite authorities:

Minn. Stat. § 363A.04 (2018)

2

STATEMENT OF INTEREST

The Commissioner of the Minnesota Department of Human Rights Rebecca

Lucero has a compelling interest in ensuring that the Minnesota Human Rights Act,

Minn. Stat. ch. 363A ("MHRA"), is correctly interpreted to protect the public.1 The

Minnesota Department of Human Rights ("MDHR"), under the direction of the

Commissioner, is the state agency that enforces the MHRA. The Legislature charged the

Commissioner with formulating policies to accomplish the MHRA's purpose of securing

freedom from discrimination for persons in Minnesota. Minn. Stat. §§ 363A.02, subd. 1,

363A.06, subd. l(a) (2018). The Commissioner has the authority to investigate charges

of discrimination and to attempt to eliminate discrimination through many methods,

including education and conciliation. Id. § 363A.06, subd. l(a). The Commissioner is

committed to ensuring persons in Minnesota can live and work free from discrimination.

This case concerns the application of MHRA's statute of limitations to a hostile

environment claim. Charges alleging hostile environments, sexual harassment, and

constructive discharge are often filed with MDHR. MDHR investigates such claims and

determines whether probable cause exists to believe a violation of the MHRA occurred,

which can include determining whether the charges were timely filed. Id. § 363A.28,

subds. 3(a), 6 (2018). This case also concerns whether the MHRA protects unpaid

workers and students performing unpaid work to fulfill educational requirements, and the

extent to which the MHRA preempts common law negligence claims. The MHRA

1 No portion of this brief was prepared by counsel for a party, and no monetary

contribution was received. See Minn. R. Civ. App. P. 129.03.

3

should be construed to accomplish its broad remedial purpose without limiting

individuals' recourse for harms that occur at school or at work. While the Commissioner

does not have a stake in Appellant Meagan Abel's case, proper application and

interpretation of the MHRA is important to MOHR and the citizens of the State. The

Commissioner therefore offers her views to this Court.

ARGUMENT

The MHRA declares that the opportunity to obtain employment and to fully and

equally utilize an educational institution free from discrimination is a civil right. Minn.

Stat. § 363A.02, subd. 2. The Legislature recognized that discrimination based on a

person's membership in a protected class threatens the rights and privileges of all and

"menaces the institutions and foundations of democracy." Id., subd. l(b ). To accomplish

the MHRA' s purpose of securing freedom from discrimination for persons in Minnesota,

the MHRA is to be liberally construed. Id. § 363A.04 (2018); see also, e.g., Rasmussen

v. Two Harbors Fish Co., 832 N.W.2d 790, 795 (Minn. 2013).

Abel alleged that she experienced sexual and racial harassment in violation of the

MHRA when she was a practicum student working and receiving training at a hospital.

The district court granted defendants' Rule 12 motions for failure to state a claim. The

Minnesota Court of Appeals affirmed, holding in part that Abel's MHRA claims against

the defendants were time-barred.

MOHR advocates for reversal of the decision of the court of appeals. The court

erroneously applied the MHRA's statute of limitations to dismiss a hostile environment

claim at the pleading stage by using a framework better suited for discrete discriminatory

4

acts, not hostile environment cases. The decision fails to account for the unique nature of

hostile environment claims and to recognize employer conduct that may contribute to

such environments. Additionally, when a persistent hostile environment culminates in a

constructive discharge, the claim should be timely where the resignation or last day of

work falls within the limitations period, whichever is later. Should this Court reach the

other issues presented on appeal, the Court should construe the MHRA to protect unpaid

workers and practicum students working to complete educational requirements, and avoid

interpreting the MHRA's exclusivity provision in an overly broad manner.

I. THE COURT OF APPEALS INCORRECTLY APPLIED THE LIMITATIONS PERIOD

UNDER THE MINNESOTA HUMAN RIGHTS ACT.

The court of appeals erroneously applied the MHRA's limitations period to limit

the analysis of a hostile environment claim to those acts occurring during the limitations

period. Hostile environment claims differ from other types of discrimination claims.

Although the court of appeals' decision claims to recognize the continuing violation

doctrine, the decision seemingly carves out individual acts alleged to be discriminatory as

opposed to considering the totality of the alleged discriminatory conduct. In addition, the

decision fails to recognize that an inadequate response to harassment may contribute to or

perpetuate a hostile environment. To assist this Court's consideration, this section

provides information on the MHRA's statute of limitations and hostile environment

claims before addressing the errors in the court of appeals' decision.

5

A. The MHRA Limitations Period.

Persons who have been aggrieved by discrimination in violation of the MHRA

have the option of filing a charge of discrimination or bringing a private civil action.2

Minn. Stat. § 363A.28, subd. 1. Despite its broad remedial mandate, the MHRA contains

a short limitations period. A claim must be brought as a civil suit or filed in a charge

"within one year after the occurrence of the practice."3 Id., subd. 3(a); see also Minn. R.

5000.0400, subp. lb (2019).

For purposes of equitable tolling of the MHRA's statute of limitations, the Court

has recognized the continuing violations doctrine in cases involving an ongoing series or

pattern of discrete acts. See Sigurdson v. Isanti Cty., 448 N.W.2d 62, 66-68 (Minn.

1989); Bhd. of Ry. and S.S. Clerks, Freight Handlers, Express and Station Emps., Lodge

364 v. State by Balfour, 229 N.W.2d 3, 12 (Minn. 1975).4 As the Court explained in

Hubbard v. United Press Int'!, Inc., the doctrine has been applied "to toll the statute of

limitations in employment discrimination actions when the discriminatory acts of an

employer over a period of time indicate a systematic repetition of the same policy and

constitute a sufficiently integrated pattern to form, in effect, a single discriminatory act."

2 A person who has filed a charge may still bring a civil action consistent with Minn. Stat.

§ 363A.33, subd. 1. 3

By statute, this limitations period is tolled under certain circumstances. See id., subd. 3(b)-(c). 4

Although these cases address the continuing violations doctrine, they are not sexual

harassment cases.

6

330 N.W.2d 428, 440 n.11 (Minn. 1983) (citation omitted).5 Thus, the continuing

violations doctrine provides that an employer may be liable for discrete acts of

discrimination that are continuing in nature or that manifest themselves over time, even if

some or most of the acts individually occurred outside of the limitations period. See

Sigurdson, 448 N.W.2d at 68.

The Minnesota Supreme Court has not fully addressed the continuing violations

doctrine as applied to sexual harassment or hostile environment cases. As described in

the following section, the nature of a hostile environment claim is different in kind and

scope from discrete acts of discrimination. Therefore, courts determining whether a

claim is timely under the MHRA must consider the nature of the claim raised by the

plaintiff and the temporal scope of the allegation, before determining whether and how to

apply the continuing violations doctrine.

B. Hostile Environment Claims.

Hostile environment discrimination claims are unlike discrimination claims that

challenge discrete acts. An employment or educational environment6 may become hostile

and violate the MHRA based on the cumulative effect of harassing conduct.

The MHRA's prohibition of sexual harassment specifically addresses hostile

environment claims. The MHRA provides:

5 Hubbard seems to concern claims of ongoing discrimination, but the Court ultimately

did not reach a continuing violations issue presented on appeal because of the decision on

the merits. See id. at 431, 440 n.11, 442 n.13. 6 For ease of reference, this brief will often refer to an employment or educational

environment, although the MHRA prohibits discrimination, including sexual harassment,

in other contexts.

7

"Sexual harassment" includes unwelcome sexual advances, requests for

sexual favors, sexually motivated physical contact or other verbal or

physical conduct or communication of a sexual nature when:

(1) submission to that conduct or communication is made a term

or condition, either explicitly or implicitly, of obtaining employment,

public accommodations or public services, education, or housing;

(2) submission to or rejection of that conduct or communi.cation

by an individual is used as a factor in decisions affecting that individual's

employment, public accommodations or public services, education, or

housing; or

(3) that conduct or communication has the purpose or effect of

substantially interfering with an individual's employment, public

accommodations or public services, education, or housing, or creating an

intimidating, hostile, or offensive employment, public accommodations,

public services, educational, or housing environment.

Minn. Stat. § 363A.03, subd. 43 (emphasis added). While a plaintiff must establish the

elements set forth in the MHRA to maintain a sexual harassment claim, see Cummings v.

Koehnen, 568 N.W.2d 418, 424 (Minn. 1997), the MHRA prohibits hostile environment

claims on other protected bases. See LaMont v. Indep. Sch. Dist. No. 728, 814 N.W.2d

14, 19-21 (Minn. 2012) (holding "MHRA permits a hostile work environment claim

based on sex, separate and apart from" sexual harassment hostile environment claim). To

succeed on such a hostile environment claim, the plaintiff must be a member of a

protected class and have been subject to unwelcome harassment; the harassment was

based on her protected class; the harassment affected a term, condition, or privilege of

employment; and the employer knew or should have known of harassment and failed to

8

take appropriate action.7 Id. at 21.

The United States Supreme Court has explained that hostile environment claims

brought under Title VII of the Civil Rights Act of 1964 ("Title VII"), "involve[ ] repeated

conduct" and "are based on the cumulative effect of individual acts." Nat'! R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). 8 The discriminatory practice

"cannot be said to occur on any particular day. It occurs over a series of days or perhaps

years and, in direct contrast to discrete acts, a single act of harassment may not be

actionable on its own." Id.

Determining whether a hostile environment exists, therefore, requires considering

the totality of the circumstances. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993);

LaMont, 814 N.W.2d at 22 (quoting Goins, 635 N.W.2d at 725)). Indeed, "[w]orkplace

conduct is not measured in isolation ...." Morgan, 536 U.S. at 116 (quoting Clark Cty.

Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001)). The Eighth Circuit has explained that

under this analysis, a court "should not carve the work environment into a series of

discrete incidents and then measure the harm occurring in each episode. Instead, the trier

of fact must keep in mind that each successive episode has its predecessors, that the

impact of the separate incidents may accumulate, and that the work environment created

7 The Court further noted that "harassing conduct is not actionable unless it is 'so severe

or pervasive' as to alter the conditions of the plaintiffs employment and create an

abusive working environment." Id. at 21-22 (quoting Goins v. W Grp., 635 N.W.2d 717,

725 (Minn. 2001)). 8 This Court can look to federal cases interpreting federal laws as guidance, although

Title VII and the MHRA differ because of the MHRA's express prohibition and

definition of sexual harassment. See Cummings, 568 N.W.2d at 422 n.5; Rasmussen, 832

N.W.2d at 796 n.3.

9

may exceed the sum of the individual episodes." Burns v. McGregor Elec. Indus., Inc.,

955 F.2d 559, 564 (8th Cir. 1992) (internal quotation marks and citation omitted),

recognized as abrogated on other grounds, Miller v. Woodharbor Molding & Millworks,

Inc., 174 F.3d 948 (8th Cir. 1999) (per curiam).

Accordingly, a hostile environment claim amounts to one unlawful practice that

consists of the cumulative effects of conduct and persists between overt incidents of

harassment. See Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108 n.1 (9th Cir.

1998) (observing that a hostile environment is "ambient and persistent" and "continues to

exist between overt manifestations"); Zetwick v. Cty. of Yolo, 850 F.3d 436, 444-45 (9th

Cir. 2017) (same) (quoting Draper, 147 F.3d at 1108 n.l); Morgan, 536 U.S. at 118

(recognizing hostile environment may still exist where there is a gap between acts

contributing to the hostile environment).9

C. The Court Of Appeals Erred In Its Analysis Of The Limitations Period

For A Hostile Environment Claim.

To determine if a hostile environment claim is timely, a court should first consider

the temporal scope of the alleged hostile environment as a whole and then consider

whether conduct contributed to the hostile environment through the limitations period.

Because a hostile environment claim can be based on the employer's response to

harassment, a claim may be timely if an uncorrected hostile environment persists through

the limitations period. The court of appeals erred by considering conduct within the

9 As Morgan recognized, if a later act has no relation to earlier acts or if the employer

intervenes, the earlier and later acts may not be part of the same hostile environment

claim. 536 U.S. at 118.

10

limitations period independently, disaggregated from the overall hostile environment

claim, and disregarding the possibility that employer inaction can contribute to the hostile

environment.

1. The Court Should Consider The Temporal Scope Of The Hostile

Environment As A Whole Before Dismissing A Claim As

Untimely.

The court of appeals erred by analyzing events that occurred within the limitations

period separately and in isolation. The court appeared to agree with the district court's

approach in focusing on specific events within the limitations period. See Abel v. Abbott

Nw. Hosp., No. Al9-0461, 2019 WL 4745372, at *5-6 (Minn. Ct. App. Sept. 30, 2019)

(unpublished). As noted above, the court of appeals failed to treat the hostile

environment claims differently than claims asserting discrete discriminatory acts.

Because each act of discriminatory conduct need not be independently actionable in a

hostile environment claim, a court must view acts of the hostile environment occurring

within the limitations period through the prism of the acts comprising the entire hostile

environment that precede them.

The United States Supreme Court's decision in Morgan provides an instructive

framework for applying the statute of limitations to hostile environment claims. Each

discrete discriminatory act is independently actionable and starts anew the limitations

period, while a hostile environment is considered a single discriminatory practice that

11

extends it.10 Morgan, 536 U.S. at 110-13, 117. "The statute does not separate individual

acts that are part of the hostile environment claim from the whole for the purposes of

timely filing and liability." Id. at 118. Thus, "[a] court's task is to determine whether the

acts about which an employee complains are part of the same actionable hostile work

environment practice, and if so, whether any act falls within the statutory time period."

Id. at 120. As the Eighth Circuit has explained, "Only the smallest portion of that

'practice' needs to occur within the limitations period for the claim to be timely." Jensen

v. Henderson, 315 F.3d 854,859 (8th Cir. 2002) (citation omitted).11

The court of appeals relied on Sigurdson, a pre-Morgan decision, for the

proposition that "[o]ne must distinguish between discriminatory acts and effects." 448

N.W.2d at 67. Sigurdson cited federal cases explaining that courts should focus the

limitations period analysis on when the discriminatory acts occurred, as opposed to when

the consequences of discriminatory acts become painful. Id. Sigurdson echoed their

conclusion that generally, mere continuity of employment on its own will not extend the

time for a cause of action. Id. Critically, however, Sigurdson is not a hostile

environment harassment case. Sigurdson involved an ongoing failure to advance an

employee to a position based on her sex. See id. at 68. The Court reasoned her claim

was timely because the practice was continuing and ongoing. Id·. In so holding, the

10 Independently actionable conduct, whether time-barred or not, could also contribute to

a hostile environment. See Morgan, 536 U.S. at 113, 115-17. 11

The timeliness issue in Jensen involved a pre-suit administrative exhaustion provision

that applies to federal employees, but the court's decision applied and cited Morgan. 315

F.3d at 859-62.

12

Court distinguished opinions finding claims time-barred where employees' challenges

were essentially to decisions made or policies adopted much earlier, although the

employees realized the effects of such decisions or policies later, within the limitations

period. See id. at 67 (discussing United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) and

Lorance v. A T & T Technologies, Inc., 490 U.S. 900 (1989)). In this context, the

distinction between discriminatory acts and effects is reasonable.

The distinction between discriminatory acts and discriminatory effects is not

obvious in a hostile environment case because the claim is based on the cumulative effect

of actions, often occurring over a period of time. In fact, the MHRA's definition of

sexual harassment explicitly includes conduct that has the purpose or effect of

substantially interfering with an individual's employment or of creating a hostile

employment environment. See Minn. Stat. § 363A.03, subd. 43(3). Similarly, for hostile

employment environment claims on other bases, the Court considers whether harassment

affected a term, condition, or privilege of employment. See LaMont, 814 N.W.2d at 21.

As discussed in more detail below, aspects of the workplace that may contribute to such

an environment include an employer's response to harassment and whether the employer

allows the hostile environment to persist uncorrected. Provided that the hostile

environment continues to exist and is uncorrected, mere continuity of employment can in

fact be sufficient.

Consistent with Morgan, determining if a hostile environment claim is timely

should not start by isolating and separating the events within the limitations period. Such

an approach, taken by the court of appeals, is at odds with the general principle that a

13

hostile environment is a single discriminatory act. A court should consider the entire

environment alleged to be discriminatory to assess whether the hostile environment

persisted through the limitations period. In making this determination, a bright line

distinction between "discriminatory acts" and "discriminatory effects" may fail to

appreciate a party's particular hostile environment claim.

2. Failing To Correct A Hostile Environment May Constitute

Conduct Contributing To The Hostile Environment.

The court of appeals' decision wrongly conflates conduct contributing to a hostile

environment with the latest incident of overt harassment. Specifically, the court

reasoned, "Under Morgan, the statute of limitations runs from the latest conduct

contributing to the hostile environment, i.e., the latest incident of harassment. Once the

racial and sexual harassment ended-whether through Allina's efforts or otherwise­

there was no longer a continuing violation." Abel, 2019 WL 4745372, at *6. In some

cases, the incidents of harassment may be the only acts alleged to contribute to the hostile

environment. But in others, the hostile environment theory is based on an employer's

response to allegations of harassment. The court's decision fails to appreciate this

distincHon. As Judge Klaphake recognized in his dissent, a hostile environment can be

perpetuated by failure to take appropriate action. Id. at *8.

Hostile environment claims can be based on an employer's response to

14

harassment.12 See, e.g., Jensen, 315 F.3d at 860-61 (determining district court erred by

failing to recognize claims against employer for failing to end co-worker harassment);

Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 573 (8th Cir. 1997) ("The failure of Mais

and other managers to take action in response to her complaints added to the hostile

environment."); Lapka v. Chertojf, 517 F.3d 974, 982 (7th Cir. 2008) (acknowledging

hostile environment claim was timely based on employer's alleged failure to investigate a

rape and take steps to protect plaintiff, although ultimately holding employer not liable);

cf Cortes v. Maxus Exploration Co., 977 F.2d 195, 198-99 (5th Cir. 1992) (transferring

employee back to environment where she had previously experienced continuing sexual

harassment and failing to take remedial measures to protect her created abusive work

environment); Vickers v. Powell, 493 F.3d 186, 199 (D.C. Cir. 2007) (recognizing that

the line is not well-defined between previous supervisor creating hostile environment and

the successor perpetuating the environment by condoning it); Sanders v. Lee Cty. Sch.

Dist. No. 1, 669 F.3d 888, 893-94 (8th Cir. 2012) (determining that an "employer can

render working conditions intolerable through inaction as well as action," and that

employer's inaction in response to repeated requests for assistance contributed to

intolerable working conditions to support constructive discharge claim).

12 An employer's knowledge of and response to harassment are often discussed in terms

of the employer's liability or possible affirmative defense. See, e.g., Frieler v. Carlson

Mktg. Grp., Inc., 751 N.W.2d 558, 570-71 (Minn. 2008). But an employer's response­

be it inaction, inadequate action, or a response that otherwise furthers the hostile

environment-may also contribute to the hostile environment.

15

Allowing a hostile environment claim to proceed based on an employer's

inadequate response to harassment reports accomplishes the MHRA's remedial purpose

of securing freedom from discrimination. Inaction allows a hostile environment to persist

and suggests that an employer condones the harassment. Similarly, an employer may

respond negatively when presented with reports of harassment, further contributing to the

hostility.

Both the United States Supreme Court and this Court have recognized the value of

having employees stay in their jobs while informally resolving employment disputes and

mitigating damages - even in the face of prospective retaliation. See Burlington Indus.

v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998);

Frieler, 751 N.W.2d 558. For example, this Court in Frieler held that when a

discrimination claim does not hinge on a "tangible employment action," employers may

avail themselves of the Ellerth!Faragher defense, whereby the employer must show:

"(l) that the employer exercised reasonable care to prevent and correct promptly any

sexually harassing behavior, and (2) that the plaintiff employee unreasonably failed to

take advantage of any preventive or corrective opportunities provided by the employer or

to avoid harm otherwise." 751 N.W.2d at 570-71 (internal quotation marks and citations

omitted). Because of the availability of the Ellerth/Faragher defense, an employee

experiencing harassment may have to remain in the workplace for some period of time

after the last act of harassment in order to give the employer an opportunity to investigate

and correct the problem.

16

As demonstrated by Abel's experience, availing oneself of an employer or an

educational institution's internal dispute resolution mechanisms can be protracted and

confusing, and can further expose a person to retaliation. It may take time for a person to

realize that formal methods of reporting harassment at school or at work will not remedy

the environment. Moreover, the facts in this case present multiple layers of complication,

where an unpaid intern participating in a school-required, off-site practicum reported to

various authorities at the school and hospital, as well as a state board.

Consider further an example of an employee who is sexually assaulted at work by

a coworker or supervisor and properly reports the sexual assault. If the employer takes

no action, the employee must continue working with or under the direction of the

assailant. Surely the hostile environment would not be limited to the assault itself,

because the employer's inadequate response would contribute to the hostile environment.

The employee would be left to work in an uncorrected environment for an employer

unwilling to address her reports.13 Suppose further that the assault occurred outside the

limitations period but the employee's reporting and/or the employer's inaction persists

through the limitations period. The employee's hostile environment claim should still be

timely because the employer's inadequate response allowed the hostile environment to

continue. The inadequate response may raise more significant concerns in cases where

the assailant is a supervisor or in a position of authority over the employee.

13 Even if a hostile environment exists, a worker or student may not be in a position to

leave her job or school immediately. Some of these practical reasons are discussed in

section II, infra.

17

In a hostile environment case where an employer's response contributes to the

hostile environment, it may be difficult to draw a bright line between timely and untimely

claims. If an employee ultimately quits due to repeated harassment and employer

inaction, the hostile environment may persist until the last day of work. In such cases,

the hostile environment only ceases because the employee affirmatively removes herself

from the situation. If an employee takes leave because the employer failed to take

corrective action, then the environment may persist through that leave period because the

employee cannot return to an uncorrected work environment. See Jensen, 315 F.3d at

861-62. When the limitations analysis is fact-dependent, MHRA claims should not be

summarily disposed of on the pleadings.

II. A CLAIM THAT A HOSTILE ENVIRONMENT CAUSED AN EMPLOYEE To RESIGN

MAY BE TIMELY IF THE LAST DAYS OF THE HOSTILE ENVIRONMENT FALL

WITHIN THE LIMITATIONS PERIOD.

A discriminatory hostile environment may culminate in an employee quitting her

job or a student leaving her school.14 In the employment context, this is referred to as a

constructive discharge. Although MDHR understands Abel has indicated she is not

arguing a constructive discharge theory, the district court addressed it and MDHR wishes

14 For educational institutions, unfair discriminatory practices include discriminating in

any manner in the utilization of or benefit from any educational institution; and

excluding, expelling, or otherwise discriminating against a person seeking admission or

enrolled as a student. See Minn. Stat. § 363A.13, subds. 1-2. A person would be denied

the full utilization of or benefit from an educational institution, and may be considered

excluded from the institution, if the person has to leave because of a discriminatory

hostile environment.

18

to address constructive discharge because deciding if Abel's claim is timely could impact

similar cases that allege constructive discharge.

A constructive discharge claim concerns an employee res1gnmg to escape

intolerable working conditions caused by unlawful discrimination. See Cont'! Can Co. v.

State, 297 N.W.2d 241,251 (Minn. 1980); see also Danz v. Jones, 263 N.W.2d 395,403

n.4 (Minn. 1978). A party presenting a constructive discharge claim based on sexual

harassment essentially "presents a 'worse case' harassment scenario, harassment

ratcheted up to the breaking point." Penn. State Police v. Suders, 542 U.S. 129, 147-48

(2004). To maintain this claim, the employee must establish "working conditions so

intolerable that a reasonable person would have felt compelled to resign." Id. at 147.

In Green v. Brennan, 136 S. Ct. 1769 (2016), the United States Supreme Court

determined that the limitations period for a constructive discharge claim runs from the

employee's resignation date.15 Id. at 1776-82. The opinion reasons that, because a

constructive discharge claim consists of both discriminatory conduct leading to the

employee's resignation and the resignation itself, the claim does not accrue until the

employee actually resigns. Id. at 1777-78. Thus, the claim is timely if the resignation

occurs within the limitations period. Id. at 1776-82. See also Hukkanen v. Int'! Union of

Operating Eng'rs, Hoisting & Portable Local No. 101, 3 F.3d 281, 285 (8th Cir. 1993)

(rejecting argument about timeliness where plaintiff proved pattern of sexual harassment

15 As in Jensen, the Green Court was analyzing a pre-suit administrative exhaustion

provision for federal employees, but is operationally no different than the limitations

period in the MHRA. In Green, the Court applied principles relevant to a general statute

of limitations analysis. See 136 S. Ct. at 1775-76.

19

culminating in her constructive discharge, with the last act of discrimination-the

constructive discharge-occurring within the limitations period).

Thus, in constructive discharge cases, the limitations period does not begin to run

until an employee resigns from a position. The resignation is a result of the

discriminatory conduct that leads to it-so a court must look back to consider all of the

discriminatory conduct leading to the resignation. Critically, for such claims a specific

incident of harassment need not occur within the limitations period. If the plaintiff has

otherwise established a hostile environment or a pattern of discriminatory conduct that

culminates in the plaintiff leaving the w,orkplace, a claim is timely even if the only act or

conduct falling within the limitations period is the resignation or the last days of work.

Green explores important practical reasons why the limitations period should not

run before an employee resigns and why an employee may wait to resign despite facing

intolerable working conditions. A person may not be able to afford to resign immediately

or the person may delay for other reasons, such as a school teacher waiting until the end

of the school year. 136 S. Ct. at 1778. In addition, and as relevant to Abel's case, a

person may delay to minimize potential adverse professional or educational repercussions

or to see if the environment improves as she continues to report harassment. A person

may also delay to avoid going without critical benefits for herself or her dependents. As

discussed above, an employee may have an obligation to stay at work to report a claim of

harassment. See Frieler, 751 N.W.2d 558.

The Green Court held that the limitations period for a constructive discharge claim

begins to run from the date of resignation, as opposed to the last day of work. 136 S. Ct.

20

at 1782. The rule adopted in Green is analogous to Minnesota Supreme Court precedent

that the date an employee receives a notice of termination starts the limitations period for

a discriminatory discharge claim, as opposed to the last date actually worked. Turner

v. IDS Fin. Servs., Inc., 471 N.W.2d 105, 108 (Minn. 1991). In some cases, the

resignation or termination date and last day of work will be the same. In others, the dates

may not be immediately ascertainable. There may be other reasons to depart from a

bright line rule based on the particular facts. In many respects, running the limitations

period from the date of resignation as opposed to the last day of work punishes those who

opt to provide advance notice to their employer but still choose to complete a contract,

program, or other commitment to an employer through a certain date. Again, courts may

not be able to decide these issues at the motion to dismiss stage. Regardless, a

constructive discharge hostile environment claim may be timely if the only conduct

occurring within the limitations period are the last day or days of employment and the

employee's resignation.

III. THE COURT SHOULD CONSTRUE THE MHRA TO PROTECT UNPAID WORKERS

AND STUDENTS PERFORMING UNPAID WORK As A REQUIREMENT OF THEIR

EDUCATION.

The MHRA is a remedial statute meant to protect persons from discrimination in

employment and education. If this Court reaches the issue of whether the MHRA

protects a student intern like Abel, the Court should liberally construe the MHRA to

accomplish its remedial purpose. MDHR will not address the ultimate merits of the

parties' claims and theories. But as the state agency tasked with enforcing the MHRA,

MDHR has an interest in preserving its ability to apply the law to different fact scenarios.

21

The MHRA should be construed to protect an individual working in a workplace

as a mandatory practical component of their education even if the individual is not paid

for that work. In some cases, the relationship between the individual and the entity that

hires the individual and provides professional training and instruction to that individual,

may be an employer-employee relationship. In other cases, the relationship may be an

educational institution-student relationship. Because this determination is fact-

dependent, the Court should decline to adopt the district court's bright line rule that no

plausible employment relationship exists absent compensation.

The MHRA defines employee as "an individual who is employed by an employer

and who resides or works in this state. Employee includes a commission salesperson, as

defined in section 181.145, who resides or works in this state." Minn. Stat. § 363A.03,

subd. 15. An employer is a "person who has one or more employees." Id., subd. 16.

These definitions neither reference nor require compensation, and do not define

"employ." However, the MHRA's employment provision makes clear that it applies to

decisions to refuse to hire someone seeking employment; discharge; and discrimination

with respect to, inter alia, compensation, terms, conditions, or privileges of employment.

Id. § 363A.08, subd. 2. The MHRA also identifies exemptions to its employment

discrimination provisions, but the exemptions do not specifically include internships or

unpaid positions. See id. §§ 363A.08 note, 363A.20, 363A.26 (2018).

The district court relied on federal law applying Title VII in determining that no

plausible employment relationship exists absent compensation. See App. Add. 41-42

(discussing Jacob-Mua v. Veneman, 289 F.3d 517 (8th Cir. 2002) and Graves v. Women's

22

Prof'l Rodeo Ass'n, Inc., 907 F.2d 71 (8th Cir. 1990)).16 Although this Court frequently

relies on interpretations of Title VII, the Court is not bound by them.

Whether and how an individual is paid may be relevant m deciding if an

employment relationship exists, but it should not be dispositive. For example, mode or

method of payment is frequently considered to determine if an employment relationship

exists-although often in deciding if an individual is an employee as opposed to an

independent contractor. See, e.g., Guhlke v. Roberts Truck Lines, 128 N.W.2d 324, 326

(Minn. 1964) (identifying five factors to determine if person is employee or independent

contractor); Wangen v. City of Fountain, 255 N.W.2d 813, 815 (Minn. 1977). Indeed,

some of the employment relationship-related tests that courts apply are better suited to

considering that issue. But in that context, the Court has emphasized that "[t]he right to

control the means and manner of performance generally carries the greatest weight in a

determination of the worker's status." Baily v. Comm 'r of Econ. Sec., 544 N.W.2d 295,

296 (Minn. 1996).

This Court could utilize the test in Guhlke or adapt it to determine if an entity that

hires interns is an employer for purposes of the MHRA. For example, some factors that

may bear on whether an employment relationship exists include whether the putative

16 In Jacob-Mua, the court explained that one of the parties was a volunteer researcher,

was not paid, and did not receive and was not entitled to variety of benefits. 289 FJd at

520-21. The court further noted that she had signed an agreement for volunteering

services explaining she did not have federal employee status. Id. at 521. Graves

involved a claim about denying membership to a nonprofit rodeo association. 907 F.3d at

71-72. On appeal, to determine if Title VII applied to the association, the court

considered if the members of the association could be considered employees. Id. at 72.

23

employer controls the means and manner of the work performance and the work

premises; whether the putative employer can hire or fire the individual; the agreement

entered into between the entity and individual; whether the internship leads to a paid

position; the work the individual performs; and the benefits the individual receives.

Cf Wangen, 255 N.W.2d at 815; 2 EEOC Compliance Manual, § 2-III-A-1-c (Aug.

2009), available at https://www.eeoc.gov/policy/docs/threshold.html (last visited Jan. 23,

2020). The determination should be based on the particular facts of a case. In making

the determination, it would be reasonable to broadly construe the employment provisions

of the MHRA to protect individuals from discrimination at their workplace.

The MHRA also prohibits discrimination by educational institutions. The MHRA

defines educational institution as "a public or private institution and includes an academy,

college, elementary or secondary school, extension course, kindergarten, nursery, school

system and a business, nursing, professional, secretarial, technical, vocational school, and

includes an agent of an educational institution." Minn. Stat. § 363A.03, subd. 14. The

use of the word "includes" indicates that the definition is neither exhaustive nor

exclusive. See LaMont, 814 N.W.2d at 19. An entity that accepts someone into a

program, provides instruction and training, and evaluates the individual in a manner

consistent with how a school might evaluate her, is performing educational functions.

Like the employment relationship determination, this determination may depend on the

facts of a particular case.

To hold that the MHRA does not protect an individual who performs work and

receives educational credit and training at a worksite would upend the MHRA' s remedial

24

purpose by denying the civil right to work and learn free from discrimination to a variety

of Minnesotans. If this Court reaches the issue, the Court should construe the MHRA to

protect individuals in positions such as unpaid internships and unpaid practicum students

placed to work at a specific site. MDHR asks that the Court decline to adopt the bright

line rule applied by the district court, and instead allow for case-by-case decision-making.

Whether an individual is protected under the employment provisions of the MHRA or the

educational institution provisions of the MHRA may vary depending on the facts of the

case and once again may not be capable of resolution at the motion to dismiss stage.

IV. THE MHRA'S EXCLUSIVITY PROVISION SHOULD NOT UNDULY RESTRICT AN

INDIVIDUAL'S ABILITY To BRING COMMON LAW CLAIMS.

If the Court reaches the arguments about the MHRA's exclusivity provision, the

Court should not interpret the provision to unduly preempt common law claims. The

MHRA's exclusivity provision states:

... Nothing contained in this chapter shall be deemed to repeal any of the

provisions of the civil rights law or of any other law of this state relating to

discrimination because of race, creed, color, religion, sex, age, disability,

marital status, status with regard to public assistance, national origin, sexual

orientation, or familial status; but, as to acts declared unfair by sections

363A.08 to 363A. l 9, and 363A.28, subdivision 10, the procedure herein

provided shall, while pending, be exclusive.

Minn. Stat. § 363A.04.

The Court has explained that this is an exclusivity of remedies provision. See

Williams v. St. Paul Ramsey Med. Ctr., Inc., 551 N.W.2d 483, 485-86 (Minn. 1996)

(holding MHRA's exclusivity provision barred essentially the same claim under

Minnesota's Whistleblower Act); see also Wirig v. Kinney Shoe Corp., 461 N.W.2d 374,

25

378-79 (Minn. 1990) (concluding MHRA did not preempt a common law battery claim,

although a party could not recover double for the same harm); Vaughn v. Nw. Airlines,

Inc., 558 N.W.2d 736, 744-45 (Minn. 1997) (determining common law negligence claim

survived MHRA preemption).

The exclusivity provision does not preempt claims that are not covered by the

MHRA. If the MHRA does not protect an individual in a particular setting, the MHRA

cannot preempt that individual's non-MHRA claim. As the court of appeals dissent

recognized, "If the MHRA does not apply, neither does its exclusivity provision." Abel,

2019 WL 4745372, at *10. It would be an absurd result to hold that the MHRA preempts

a claim that cannot actually be maintained under the MHRA.

It should be noted that the MHRA's exclusivity provision provides that "the

procedure herein provided shall, while pending, be exclusive." Minn. Stat. § 363A.04.

The statute does not define "procedure" or "pending" in this context. The statutory text

does not require preemption of all common law claims arising from similar factual

circumstances as a discrimination claim-particularly if an individual is not protected by

the MHRA or does not have the ability to maintain a claim under the MHRA. If an

MHRA claim cannot be maintained and is dismissed because it is untimely, one could

argue that the MHRA procedures are no longer pending. Permitting common law claims

to proceed under these circumstances would not allow for double recovery. Regardless,

the MHRA's exclusivity of remedies provision should not be construed to preempt claims

that concern discriminatory conduct but could not be brought under the MHRA.

26

CONCLUSION

For the reasons discussed above, MOHR respectfully requests that the Court's

holding recognize that a hostile environment claim is unique; the events within the

limitations period should not be considered in isolation; a court should consider what

exactly is alleged to be the hostile environment and then determine whether the

environment persisted through the limitations period; and the employer's response to

reports of harassment may constitute conduct contributing to the hostile environment.

MDHR also requests that the Court construe the MHRA to protect persons who are

working and studying in an unconventional work or educational setting without unduly

limiting their ability to bring common law claims.

Dated: January 23, 2020 Respectfully submitted,

KEITH ELLISON

Attorney General

State of Minnesota

RACHEL BELL-MUNGER

Assistant Attorney General

Atty. Reg. No. 0395962

445 Minnesota Street, Suite 1400

St. Paul, Minnesota 55101-2131

(651) 757-1272 (Voice) (651) 297-4139 (Fax)

rachel.bell-munger@ag.state.mn.us

ATTORNEYSFORAMJCUSCURIAE

COMMISSIONER OF THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS

27

CERTIFICATION OF LENGTH OF DOCUMENT

I hereby certify that this document conforms to the requirements of the applicable

rules, is produced with a proportional 13 point font, and the length of this document is

6,766 words. This Brief was prepared using Microsoft Word Version 2010.

Dated: January 23, 2020

RACHEL BELL-MUNGER

Assistant Attorney General

Atty. Reg. No. 0395962

445 Minnesota Street, Suite 1400

St. Paul, Minnesota 55101-2131

(651) 757-1272 (Voice)

(651) 297-4139 (Fax)

rachel.bell-munger@ag.state.mn.us

ATTORNEY FORAMICUS CURIAE

COMMISSIONER OF THE MINNESOTA

DEPARTMENT OF HUMAN RIGHTS