By Sam Kramer & Frances Baillon
In 1955 the Minnesota Legislature enacted the State Fair Employment Act.1 It prohibited discrimination in employment based on race, color, creed, national origin, and religion.2 The seven-decade evolution of this statute, now known as the Minnesota Human Rights Act (MHRA), has been one of expanding protections for human rights. Since 1955, the Legislature has slowly but surely increased protections against discrimination, harassment, and retaliation in several contexts, including employment. It has done so through substantive and procedural amendments that have protected more groups against discrimination in more contexts and provided expanded remedies for victims of discrimination and reprisal.
This evolution accelerated over the past two years as the Legislature made significant amendments to the MHRA, including the first-ever omnibus Department of Human Rights policy bill, which Gov. Tim Walz signed into law in May 2024.3 These amendments expand and clarify the definitions of several key terms, strengthen the broad remedial damages available to claimants, resolve several important procedural disputes, and alter an existing exemption for religious organizations.
Redefining discrimination
During the 2023-2024 legislative biennium, lawmakers made several changes to the MHRA’s definitions. Through these amendments, the Legislature redefined what it means to discriminate against certain people in Minnesota. Some of these changes addressed issues that had been hotly disputed by employment law practitioners for years by updating the statute’s language to more closely match the broad and remedial purpose of the MHRA.
In a change that brought the MHRA into closer alignment with federal law, the Legislature expanded the definition of “disability” by recognizing episodic impairments and impairments that are in remission.4 Courts will now likely recognize a broader set of health conditions as disabilities under the MHRA, as they have done under federal law since Congress adopted a similar definition of “disability” with the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).
Another change to the MHRA’s definitions section broadened the class of activities considered race discrimination in Minnesota. That legislation, referred to as the CROWN Act, was modeled on laws passed in several other states and proposed in Congress. The CROWN Act prohibits discrimination based on hairstyles associated with a particular race by clarifying that “race” is inclusive of “traits associated with race,” and providing the examples of hair texture and style, such as “braids, locs, and twists.”5 The new law means that certain grooming and appearance policies at workplaces that relate to hairstyles might no longer pass muster under
the MHRA.
The Legislature also amended the MHRA in 2023 to recognize pay history inquiries as a form of discrimination. Although not a specific definition in the MHRA, the new law effectively defines the act of asking a prospective or new employee about their pay history as discriminatory under the MHRA.6
The 2024 MHRA omnibus bill further amended the definition of “familial status.” The new definition prohibits discrimination against somebody for residing with or caring for individuals who cannot care for themselves, and against those who have custody of a child even if they do not live together.7
Other changes to the MHRA’s definitions may have less practical impact, because they are largely consistent with how courts already applied the MHRA. In 2023, for example, the Legislature adopted a new, separate definition of “gender identity” and amended most provisions of the MHRA to explicitly prohibit discrimination based on gender identity, a change from the previous law, which had defined gender identity as part of “sexual orientation.”8 The Legislature also changed the definition of “discriminate” to clarify that any harassment based on membership in any protected group is discrimination.9 The prior definition only recognized “sexual harassment” as discrimination, and although lower courts recognized other forms of harassment as discriminatory, the Minnesota Supreme Court had not explicitly weighed in on the issue. Finally, the amended MHRA recognizes discrimination based on membership in multiple protected groups, clarifying that intersectional discrimination is prohibited.10
Clarifying and strengthening discrimination remedies
The plain language of the MHRA has, for decades, provided for a broad range of damages.11 Over time, the Legislature has increased the types and amounts of damages available to victims of discrimination by making compensatory and punitive damages potential remedies,12 gradually raising the cap on punitive damages,13 allowing for recovery of emotional distress damages,14 and giving courts the ability to award treble damages.15 But each of these changes prompted disputes between employers and employees about the parameters of these damages that led to mixed results in the courts. The amendments contained in the 2024 MHRA omnibus bill continued the historical trend of expanding the MHRA’s remedies by resolving these disputes in favor of victims of discrimination.
First, the amendments clarify that emotional distress damages are subject to a multiplier of up to three times the total compensatory damages award.16 Previously, whether the multiplier applied to emotional distress damages (in addition to lost wage damages) was often a point of contention. The conflict was fueled in part by differing interpretations of the MHRA’s language providing that when a plaintiff prevailed,
“the administrative law judge shall order the respondent to pay [the plaintiff] compensatory damages in an amount up to three times the actual damages sustained. In all cases, the administrative law judge may also order the respondent to pay an aggrieved party, who has suffered discrimination, damages for mental anguish or suffering and reasonable attorney’s fees.”17
As one court described, the phrases above could be interpreted to mean only lost wages are subject to a multiplier based on the order of the sentences and that emotional distress damages were set apart both in structure and language (“may also” be awarded).18 Other courts, however, determined that the multiplier applied to emotional distress damages as well, because emotional harm is a form of actual damages.19
The 2024 amendment ends this debate by specifying that “compensatory damages, including mental anguish or suffering,” shall be awarded in an amount up to three times.20 The amendment removed another topic of contention by clarifying that when a jury hears a case, the jury will determine all damages.21
Second, and perhaps more notably, the amendment completely removed the $25,000 cap on punitive damages, except for claims against political subdivisions.22 The MHRA had previously been unique among Minnesota employment statutes in capping a jury’s award of punitive damages at $25,000. The revised statute now aligns with most other state employment statutes, allowing juries the discretion to award punitive damages as they see fit. Importantly, however, this amendment does not alter the plain language of the MHRA, which says that a party is not required to meet the procedural requirements of Minn. Stat. §549.191 but may plead and seek punitive damages directly in their complaint.23
Procedural and substantive streamlining
The Legislature also streamlined procedures for adjudicating MHRA claims. For example, the 2024 bill increased the period to bring a civil action after the Minnesota Department of Human Rights dismisses a charge of discrimination from 45 days to 90 days.24 This is consistent with the 90-day time period applied to charges filed with the Equal Employment Opportunity Commission.
Another critical amendment addresses the limits of the MHRA’s exclusivity provision. The Legislature clarified that the Minnesota Department of Human Rights’ administrative process, through which a charge of discrimination may proceed, is only exclusive while that process is “pending.”25 The Legislature also confirmed that this provision or administrative process does not operate as an exclusive remedy.26 Indeed, contrary to earlier decisions,27 the amendment confirms that an individual is not limited or excluded from pursuing other claims or remedies, whether under common law or statute.
Losing my religious exemption?
The Legislature first adopted the religious exemption in 1993, as part of an overhaul that expanded the MHRA’s protections by prohibiting discrimination on the basis of sexual orientation.28 At the time of the amendment, religious organizations enjoyed no protections against MHRA claims, except when religion was a “bona fide occupational qualification” in the hiring process, such as in the hiring of priests.29 Twenty years later, in 2013, the Legislature made the only substantive amendment to the exemption by addressing discrimination claims related to marriage as part of the legislation legalizing same-sex marriages. Accordingly, for the last 11 years, the exemption has stated:
Nothing in this chapter prohibits any religious association, religious corporation, or religious society that is not organized for private profit, or any institution organized for educational purposes that is operated, supervised, or controlled by a religious association, religious corporation, or religious society that is not organized for private profit, from:
(1) limiting admission to or giving preference to persons of the same religion or denomination; or
(2) in matters relating to sexual orientation, taking any action with respect to education, employment, housing and real property, or use of facilities. This clause shall not apply to secular business activities engaged in by the religious association, religious corporation, or religious society, the conduct of which is unrelated to the religious and educational purposes for which it is organized; or
(3) taking any action with respect to the provisions of goods, services, facilities, or accommodations directly related to the solemnization or celebration of a civil marriage that is in violation of its religious beliefs.30
Then, in 2023, the Legislature amended the MHRA to recognize gender identity, previously included within the definition of sexual orientation, as a stand-alone protected category.31 The religious exemption section was left untouched, however, meaning that although religious organizations continued to be exempt from claims based on sexual orientation discrimination in their non-secular business activities under the second subdivision of the statute, they were no longer exempt from gender identity discrimination claims. During the 2024 session, religious organizations lobbied for an amendment that exempted them from claims based on gender identity discrimination.
Ultimately, lawmakers agreed to an amendment that did not explicitly address gender identity. The amended bill instead changed the religious exemption language in three ways.32 First, the language at the beginning of the statute now states that nothing in the MHRA prohibits religious organizations, “consistent with the protections or privileges of the First Amendment of the United States Constitution and article I, section 16, of the Minnesota Constitution, including ministerial exceptions provided therein, from….” Second, the bill deleted the phrase “in matters relating to sexual orientation,” from the second subdivision. Third, it moved the language in the second subdivision discussing “secular business activities” to the end of the section, making it applicable to the entire section.
The new language eliminated the exemption previously afforded religious organizations for sexual orientation discrimination claims and instead is now “consistent with” the ministerial exception, a legal doctrine developed by federal courts to exempt religious organizations from discrimination claims regarding ministerial employees under certain circumstances. The previous MHRA exemption was in some ways broader than the ministerial exception when it came to sexual orientation discrimination claims, because it had been interpreted to apply to all employees within a religious organization that was not performing secular business activities, not just those who performed religious functions.33 In contrast, the ministerial exception only exempts religious organizations from employment discrimination claims when the job in question involves performance of religious functions.34
Conclusion
From its inception, one of the “avowed public policies” of the MHRA has been “to foster the employment of all individuals in this state in accordance with their fullest capacities.”35 The nearly 70-year history of the MHRA is one of virtually uninterrupted progress toward a more equitable community through the expansion and strengthening of the rights and remedies embedded in the MHRA. These recent amendments build on that history by buttressing the MHRA’s civil rights protections. The legislation also underscores the need for the MHRA’s continued evolution to keep protecting civil rights for the next 70 years.
SAM KRAMER is an attorney at MacDonald Hoague & Bayless, a Seattle-based civil rights and immigration firm that opened a Minneapolis office in 2022. In his practice he represents plaintiffs in employment and civil rights litigation.
FRANCES E. BAILLON is an attorney at Kitzer Rochel PLLP, where she litigates and tries employment cases in state and federal court involving sexual harassment, discrimination, and retaliation.
The information provided in this article does not, and is not intended to, constitute legal advice.
Notes
1 1955 Minn. Laws, Ch. 516, sec. (H.F. 778), amended by State Anti-Discrimination Act, 1961 Minn. Laws, Ch. 428 (H.F. 867) and Minnesota Human Rights Act, 1973 Minn. Laws, Ch. 729 (H.F. No. 377).
2 Id. §363.03(2) (current version at Minn. Stat. §363A.03, subd. 2 (2021)) (Chapter 516-H.F. No. 778).
3 2024 Minn. Laws, Ch. 105 (H.F. 4109).
4 2024 Minn. Laws, Ch. 105, sec. 2 (H.F. 4109) (amending Minn. Stat. §363A.03 Subd. 12).
5 Minn. Stat. §363A.03, subd. 36(a).
6 Minn. Stat. §363A.08. subd. 8.
7 2024 Minn. Laws, Ch. 105, sec. 4 (H.F. 4109) (amending Minn. Stat. §363A.03, subd. 18).
8 Minn. Stat. §363A.03, subd. 50.
9 2024 Minn. Laws, Ch. 105, sec. 3 (H.F. 4109) (amending Minn. Stat. §363A.03, subd. 13).
10 2024 Minn. Laws, Ch. 105, sec. 1 (H.F. 4109) (amending Minn. Stat. §363A.02, subd. 1(a)).
11 Minn. Stat. §§363A.29, .30.
12 1969 Minn. Laws, Ch. 975, s. 11 (H.F. 1496).
13 1973 Minn. Laws, Ch. 729, sec. 9 (H.F. 377) (lifting cap from $100 to $500); 1980 Minn. Laws, Ch. 541, sec. 4 ($500 to $1,000); 1981 Minn. Laws, Ch. 364, sec. 2 (S.F. 939) ($1,000 to $6,000); 1988 Minn. Laws, Ch. 660, sec. 7 (S.F. 1769) ($6,000 to $8,500); 2008 Minn. Laws, Ch. 215 (S.F. 2915) ($8,500 to $25,000).
14 1981 Minn. Laws, Ch. 364, sec. 2 (S.F. 939).
15 1984 Minn. Laws, Ch. 567 (S.F. 1762).
16 2024 Minn. Laws, Ch. 105, sec. 18 (H.F. 4109) (amending Minn. Stat. §363A.33).
17 Minn. Stat. §363A.29 Subd. 2 (emphasis added).
18 Mathieu v. Gopher News Co., 273 F.3d 769, 781 (8th Cir. 2001) (affirming magistrate applying multiplier to emotional distress damages as consistent with general rule that actual damages include emotional distress damages and non-binding precedent); c.f. Ray v. Miller Meester Advertising, Inc., 664 N.W.2d 355, 370 (Minn. Ct. App. 2003) (stating multiplier does not apply because the language of the MHRA “specifically does not include emotional damages within the damages permitted to be trebled.”) aff’d on other grounds 684 N.W.2d 404 (Minn. 2004).
19 Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 275-76 n.2 (Minn. 1995) (stating actual damages are synonymous with compensatory damages, which in turn include both general and special damages); Stavenger v. Jay Ryan Enterprises, Inc., Civ. No. 07-3514, 2008 WL 906794 *3 (D. Minn. 4/3/2008) (affirming doubling of emotional distress award due to pregnancy discrimination); Kohn v. City of Minneapolis Fire Dept., 583 N.W.2d 7, 14-15 (Minn. Ct. App. 1998), review denied (Minn. 10/20/1998), (upholding trebling of emotional distress damages due to race discrimination).
20 2024 Minn. Laws, Ch. 105, sec. 18 (H.F. 4109) (amending Minn. Stat. §363A.33) (emphasis added).
21 Id.
22 Id.
23 Hamlin v. Super 8 Motel of Fosston, Inc., No. C3-99-1284, 2000 WL 622264 at *5 (Minn. Ct. App. 2000), review denied (Minn. 7/25/2000), (citing Bougie v. Sibley Manor, Inc., 504 N.W.2d 499, 496 (Minn. Ct. App. 1993) (“But a plaintiff does not forfeit a punitive damages award under the MHRA by failing to meet the motion requirements of section 549.191.”);
24 2024 Minn. Laws, Ch. 105, sec. 16 (H.F. 4109) (amending Minn. Stat. §363A.33, subd. 1).
25 Id., at sec. 6 (amending Minn. Stat. §363A.04 to say “…but, as to acts declared unfair by sections 363A.08 to 363A.19, and 363A.28, subdivision 10, the administrative procedure herein provided shall, while pending, be exclusive. The rights and remedies herein provided are in addition to, and shall not preclude, those available at law or in equity.”) (amended terms italicized).
26 2024 Minn. Laws, Ch. 105, sec. 6 (H.F. 4109) (amending Minn. Stat. 363A.04).
27 See Williams v. St. Paul Ramsey Med. Ctr., Inc., 551 N.W.2d 483, 485-86 (Minn. 1996) (referring to the MHRA’s exclusivity provision as the “exclusivity of remedies provision…” and holding that it operates as a bar to pursuing other claims).
28 1993 Minn. Laws Ch. 22, art. 1, §6.
29 Minn. Stat. §363A.20, subd. 2.
30 Minn. Stat. §363A.26.
31 2023 Minn. Laws, Ch. 52, sec. 48 (S.F. 2909).
32 2024 Minn. Laws, Ch. 105, sec. 12 (H.F. 4109).
33 See Thorson v. Billy Graham Evangelistic Ass’n, 687 N.W.2d 652, 658 (Minn. Ct. App. 2004), review denied (Minn. 12/22/2004), (finding the MHRA religious exemption applies to all employees of religious organizations that are not engaged in secular business activities); Egan v. Hamline United Methodist Church, 679 N.W.2d 350, 356 (Minn. Ct. App. 2004), review denied (Minn. 6/29/2004), (describing test for ministerial exception as “more demanding than the Minnesota statutory test.”).
34 See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 732, 140 S. Ct. 2049, 2053 (2020); Anderson v. Aitkin Pharmacy Servs., LLC, 5 N.W.3d 123, 138 n.8 (Minn. Ct. App. 2024) (discussing scope of ministerial exception).
35 1955 Minn. Laws, Ch. 516, sec. 1 (H.F. 778).