Can you still win a sexual harassment lawsuit in Minnesota?

In the movie 'North Country,' Charlize Theron portrayed Lois Jenson, the Minnesota woman who sued for sexual harassment. These days, Jenson might not even get a chance in court.

In the movie 'North Country,' Charlize Theron portrayed Lois Jenson, the Minnesota woman who sued for sexual harassment. These days, Jenson might not even get a chance in court. Warner Bros.

Erin Maye Quade used to watch her mother get ready for work. Mom dressed up nicely for her job as a Wells Fargo vice president. The last thing she did every morning was pin one ear down with Scotch tape.

It hid the damage done at an office Christmas party, when, May Quade’s mom said, a drunken male colleague traipsed around the room, grabbing and kissing women. Maye Quade’s mom refused him and turned her head. In their struggle, her earring ripped through her lobe.

“At that time, that was just some drunk guy being an A-hole,” says Rep. Maye Quade (DFL-Apple Valley), who last month came forward to say she’d been harassed by two fellow lawmakers. “Things are changing now. Things have changed even in the last couple years.”

Not all those changes are good. The cultural wheel has turned, shedding from its spokes such luminaries as Kevin Spacey, Matt Lauer, and Garrison Keillor. Both lawmakers who Maye Quade accused of harassment resigned.

But most perpetrators aren’t famous, and their names don’t make for explosive headlines. Their victims are supposed to have their day in court. The wheel is turning there, too—in reverse.

In 2014, Denise Blomker was fired from her job as secretary in the U.S. Fish and Wildlife Service’s Bloomington office. The official letter said Blomker was being terminated for calling a supervisor a “goddamned fucking liar” and grabbing his arm.

In a lawsuit alleging a “hostile work environment,” Blomker had a different story to tell: She’d suffered through years of sexual harassment by two co-workers. According to the lawsuit, one day, a man came walking toward her with a “smirk on his face” and stood “extremely close.” When Blomker looked down, she realized he had an erection.

After another incident when she felt the man had violated her space, Blomker complained to supervisors, loudly: “What does that man have to do, rape me before anyone does anything?” She was “written up,” according to her lawsuit.

In the same lawsuit, Blomker would accuse a second man of deliberately spreading his legs wide and picking at the seam “in the crotch of his pants” while they spoke. She also accused him of carrying on a conversation while he had a visible erection.

Did these things really happen, as Blomker says? We’ll never know. In the agency’s defense, the U.S. District Attorney’s Office argued that even if the claims were true, her treatment was not “severe and pervasive” and was not “objectively offensive.” A judge agreed—the men’s behavior was “vile and inappropriate,” maybe, but not “actionable harassment”—and dismissed it.

Blomker appealed to the Eighth Circuit Court. Last year, a three-judge panel threw her case out in a 2-1 decision, observing at one point that “none of [Blomker’s] alleged incidents involved actual touching.” A guy with a hard-on was no big deal.

The ruling cited previous Eighth Circuit findings 20 different times. Among them: a case where a man called a co-worker frequently at home and left romance novels in her office mailbox. One where a man said a woman would “advance professionally” if she got him off. And one where a man called a woman “baby doll” and told her over the phone “she should be in bed with him.” None of these were considered harassment. Why would Blomker’s experiences be?

This is not the court Jean Boler remembers. She was a lawyer on Jenson v. Eveleth Taconite Company, a class-action case where more than a dozen women sued their employer for near-constant sexual harassment in the late 1980s and early 1990s. (Their story was later told in numerous books and the movie North Country.) The atmosphere at the mine was chauvinist to its core. Porn hung from the walls, and men routinely propositioned or taunted female co-workers. Some treated the women’s bodies as theirs to touch whenever the urge struck.

In a 1996 ruling, a retired Minnesota judge granted the victims amounts between $2,500 and $25,000. They appealed to the Eighth Circuit, which threw out the paltry awards and sent the case to a jury. “Money cannot make these women whole,” the court wrote, but victory could teach businesses that “such hostility will not be tolerated.”

The mining company ducked a jury trial, instead settling for a combined $3.5 million.

Two decades later, Boler would be less confident about bringing such a suit. “I have wondered what would have happened to the Jenson women in this climate,” Boler says. “It is questionable that they would’ve been successful.”

What happened? Elections. Of nine judges currently on the Eighth Circuit, eight of them, all men, were appointed by Republican presidents. A ninth, Minnesota Supreme Court Justice David Stras, will soon join them. Federal appeals court judges are appointed for life.

“Things have really swung the other way, with judges now extremely skeptical of employees’ claims against the employer,” says Boler. “It’s a warning... that society is way ahead of the court on these issues right now. It reminds me of gay rights, and marriage equality, where the courts had to come along with society.”

Or be instructed to. By creating a stronger, clearer, federal anti-discrimination employment law, Congress could help. But it won’t.

Erin Maye Quade wants to turn unwanted attention into momentum. She thinks now is the time for Minnesota to address sexual harassment. It could start by rewriting the Minnesota Human Rights Act, where judges somehow think a ban on “intimidating, hostile, or offensive” behavior still allows a guy and his erection to march right over to the next cubicle.

When her bill gets a hearing, the line to testify might run out the door.

More from Mike Mullen: