Rasmussen v. Two Harbors Fish Co.

832 N.W.2d 790, 2013 WL 2221487, 2013 Minn. LEXIS 274, 97 Empl. Prac. Dec. (CCH) 44,844, 118 Fair Empl. Prac. Cas. (BNA) 790

• Court: Supreme Court of Minnesota
• Decided: May 22, 2013
• Docket: No. A11-2178
• Status: Published

Opinions

OPINION

GILDEA, Chief Justice.

At issue in this case is whether the respondents/cross-appellants Jaime Rasmussen, Jennifer Moyer, and Kathe Reinhold are entitled to relief under the Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363A.01-.43 (2012). Rasmussen, Moyer, and Reinhold (the Employees) filed a complaint alleging that their employers, Two Harbors Fish Company and BWZ Enterprises (the Employers), violated the MHRA based on sexual harassment perpetrated by Brian Zapolski, who is the sole owner of both entities.¹ The Employees also alleged that Zapolski was individually liable under the MHRA’s aiding and abetting provision.

The district court dismissed the Employees’ claims with prejudice, finding that they had not been subject to harassment that is actionable under the MHRA. The Employees appealed, and the court of appeals reversed. Rasmussen v. Two Harbors Fish Co., 817 N.W.2d 189, 191 (Minn. App.2012). The court of appeals held that the district court’s determination that the harassment was not actionable was clearly erroneous, and the court of appeals ruled as matter of law that the Employees were entitled to judgment on their claims. Id. at 202. But the court held that Zapolski could not be individually liable for aiding and abetting the Employers’ MHRA violations. Id. at 203.

The Employers and Zapolski appeal the court of appeals’ decision on the merits of the Employees’ sexual harassment claims. On cross-appeal, the Employees challenge the ruling on Zapolski’s liability as an aider and abettor. We agree with the court of appeals that Zapolski cannot be liable on an aiding and abetting theory. But because we conclude that the district court made errors of law in its decision on the merits of the Employees’ MHRA claims, we reverse and remand.

The Lake County District Court held a bench trial on the Employees’ claims. At trial, the Employees testified about Zapol-ski’s behavior. The district court made findings specific to each of the Employees.

With respect to Rasmussen, the district court found that her “testimony was substantially credible.” Rasmussen testified that approximately 6 months after she began working for the Employers, Zapolski began asking her questions about her sexual preferences. When Zapolski asked her these questions, Rasmussen told him that it was “none of [his] business.” Zapolski also told Rasmussen about his sexual preferences and sexual dreams. Zapolski called Rasmussen several pet names and used very explicit sexual language in the workplace. Rasmussen testified that she told Zapolski that she did not want to hear those things. Zapolski also told Rasmussen stories of a sexual nature regarding other employees, made sexual comments about female customers, and made a joke about his penis size. Rasmussen testified that she was “totally humiliated” by the comments Zapolski made toward female customers.

In addition to making comments of a sexual nature, Rasmussen testified that Zapolski engaged in other inappropriate conduct, including touching Rasmussen on the posterior on at least two occasions. Zapolski showed Rasmussen and other employees a picture in a Playboy magazine and told Rasmussen that the woman in the picture looked like her. Zapolski also gave Rasmussen a pornographic DVD and asked her to watch it.

Rasmussen testified that she was “grossed out by the way [Zapolski] looked at” her and talked about her. She said that she continued to work for the Employers for as long as she did because her husband was laid off, and she was the sole provider for her family. Despite the problems she was experiencing with Zapolski, however, Rasmussen recommended that Moyer begin working for the Employers in May 2009.

Rasmussen terminated her employment with the Employers in March 2010. The district court found that “Zapolski’s conduct may have been a partial factor in Rasmussen’s decision to leave her employment.”

Regarding Moyer, the district court found that “Moyer’s testimony was moderately credible.” Moyer began working for the Employers in May 2009, and she worked between 10 and 20 hours per week. Moyer testified that about 2 or 3 weeks after she started working for the Employers, Zapolski began to ask Moyer about her sex life and told her about his sex life. He also occasionally made comments of a sexual nature to her about other people. In addition, Zapolski would sometimes call Moyer at work during an evening shift and ask, “[h]ow’s my little horny one?” Moyer said that she did not want to answer the phone at work because she was “scared that it was gonna be [Zapolski] on the other line.” Also, on one occasion, Zapol-ski referred to Moyer as his girlfriend in front of a male employee. Moyer told Zapolski that she was not his girlfriend and “he got mad and walked out.”

Moyer testified that Zapolski asked her if she had any single friends that she “could hook him up with.” Zapolski told Moyer that he would be “willing to pay for it.” Moyer was also touched by Zapolski at least once when Zapolski grabbed her waist. Zapolski showed Moyer the same picture in the Playboy magazine that Rasmussen described and asked Moyer if the picture reminded her of Rasmussen. Moyer testified that the experience made her feel “[ejxtremely violated ... [a]nd uncomfortable.”

Moyer quit working for the Employers at the end of August 2009. On the day Moyer quit, Zapolski criticized her for using her cell phone at work. Moyer told him that she only used her phone to check on her daughter during the day. The district court found that “Moyer’s decision to terminate her employment was precipitated, at least in part, by Zapolski[’s] discipline regarding Moyer’s use of her cell phone at work.”

Regarding Reinhold, the district court found that her “testimony was substantially credible.” Reinhold began working for the Employers in November 2009, but she soon quit. Reinhold testified that Zapolski began making sexual comments to Reinhold on her first day of work and did so every day thereafter, including describing the sex life of others and discussing the size of men’s genitals. Zapolski told Reinhold that he was going to call her “Sweets.” Reinhold told Zapolski that she would not like that and that he should not call her that. Zapolski also touched Reinhold, including leading her around by the hand, and picking wood chips from the chest area of her sweater after she had been splitting and stacking wood. Zapol-ski’s physical touching embarrassed Reinhold. Also, during her brief employment, Reinhold ran into Zapolski outside of work. She mentioned that there was a football game on the day she ran into Zapolski, and Zapolski said, “Well, it’s a perfect day to watch football and make love.” Reinhold felt that Zapolski’s comment “was an invitation” and it made her feel anxious.

Reinhold’s last day of employment was November 16, 2009. The district court found that “Zapolski’s sexually inappropriate conduct may have been a partial factor in Reinhold’s decision to leave her employment.”

Zapolski testified at trial and denied that any of the offensive behavior the Employees described had occurred. The district court did “not believe Zapolski’s testimony was truthful and therefore [the court] generally disregarded his denials.”

After trial, the district court issued written findings of fact and conclusions of law and dismissed the Employees’ claims. The court made findings of fact regarding the conduct perpetrated by Zapolski against each Employee and stated that “even if [the conduct complained of was] totally true,” the Employees had not established sexual harassment that rose to a sufficiently severe or pervasive level so as to be actionable under the MHRA. The court found that the Employees were “subjected to coarse sexual talk, gestures, and conduct they did not welcome” and “that the majority of the sexual comments [were] based on sex.” But the court found that the Employees’ employment was not conditioned on their submission to or participation in any sexual acts and that they did not suffer adversely in their employment because they did not lose salary or work hours for failing to participate. Ultimately, the court found that the Employees had not met “the high threshold of actionable harm by showing that the workplace is permeated with discriminatory intimidation, ridicule and insult.” In reaching this conclusion, the court noted that none of the Employees “sought counseling” or “were explicitly sexually propositioned.” Moreover, the court noted that Zapolski’s sexual comments “were widespread throughout the employment setting and not merely directed at females.”

The Employees moved the district court to amend and supplement its findings of fact and conclusions of law, and included in their motion a request that the court make findings of fact regarding specific instances of misconduct that had been alleged by the Employees. The court issued Amended Findings of Fact, Conclusions of Law, and Order for Judgment and Decree, but declined to “address each and every alleged act or statement plaintiffs offered in support of their claims,” noting that “[e]nough detail was provided to explain to the parties the basis for the Court’s original opinion.”

The Employees appealed. The court of appeals reversed, concluding that the district court erred in its determination that Zapolski’s conduct “was not sufficiently severe and pervasive to create a hostile, intimidating, or offensive work environment” under the MHRA. Rasmussen, 817 N.W.2d at 191. The court of appeals recited the facts as found by the district court regarding the conduct directed at each Employee, but also noted that the district court had “sanitized” or “omitted” more explicit or egregious aspects of the Employees’ testimony. Id. at 192-95. But because the district court found that the Employees were “moderately credible” or “credible,” found Zapolski “not credible,” and reasoned that “even if totally true” the allegations of the Employees did not constitute sexual harassment under the MHRA, the court of appeals determined that it could consider incidents of alleged misconduct about which the district court did not make explicit findings. Id. The court of appeals also considered the applicable standard of review and stated that it “believefd] that the ultimate determination of sexual harassment is a legal conclusion rather than a finding of fact.” Id. at 197. The court of appeals, however, “did not make a definitive determination on the standard of review,” because even under a clearly erroneous standard, the court of appeals concluded that the district court had erred. Id. Based on its consideration of additional facts not found by the district court, the court of appeals ruled in favor of the Employees and directed the district court on remand to enter judgment in favor of each of the Employees and address the question of their damages. Id. at 203. The court of appeals also held that while Zapolski might be personally liable as an “alter ego of the corporation,” he was not liable under the MHRA as an aider and abettor of the Employers. Id.

The Employers and Zapolski petitioned our court for further review, arguing that the court of appeals had, effectively and inappropriately, performed a de novo review of the district court’s decision. The Employees responded to the petition for review and requested that in the event we granted the petition, we also review the court of appeals’ holding that Zapolski could not be held individually liable under the MHRA’s aiding-and-abetting provision. We granted the petition for further review and granted the request for conditional cross-review.

I.

The MHRA is a remedial act that should be “construed liberally,” Minn.Stat. § 363A.04, in order to accomplish its purpose of “securing] for persons in this state, freedom from discrimination,” Minn. Stat. § 363A.02, subd. 1(a). In Continental Can Co. v. State, we held that sex discrimination as prohibited under the MHRA includes “sexual harassment which impacts ... the conditions of employment.” 297 N.W.2d 241, 249 (Minn.1980). We reasoned that differential treatment based on sex is apparent when promotion or continued employment “is conditioned on dispensation of sexual favors.” Id. at 248. And we said that sexual discrimination is “invidious, although less recognizable, when employment is conditioned either explicitly or impliedly on adapting to a workplace in which repeated unwelcome sexually derogatory remarks and sexually motivated physical contact are directed at an employee because she is a female.”² Id.

After our decision in Continental Can, the Legislature amended the MHRA to expressly state that sexual harassment is a form of sex discrimination and added a definition of “sexual harassment.” Act of Mar. 23, 1982, ch. 619, §§ 2-3, 1982 Minn. Laws 1508, 1511 (codified as amended at Minn.Stat. § 363A.03, subds. 13, 43). The MHRA makes it illegal for “an employer, because of ... sex ... [to] discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.” Minn.Stat. § 363A.08, subd. 2(3). And “[t]he term ‘discriminate’ includes segregate or separate and, for purposes of discrimination based on sex, it includes sexual harassment.” Minn.Stat. § 363A.03, subd. 13. The MHRA defines “sexual harassment” in relevant part, as “unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when ... that conduct or communication has the purpose or effect of substantially interfering with an individual’s employment ... or creating an intimidating, hostile, or offensive employment ... environment.” Id., subd. 43(3) (internal quotation marks omitted).

Subsequent to these developments in Minnesota law, the United States Supreme Court recognized sexual harassment as a type of sex discrimination prohibited under Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). In Meritor Savings Bank, the Court held that “a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment,” id. at 66, 106 S.Ct. 2399, and that the plaintiff need not show that the harassment has economic consequences, thereby distinguishing between quid pro quo sexual harassment and hostile work environment sexual harassment, id. at 64-66, 106 S.Ct. 2399. The Court held, however, that for such hostile work environment sexual harassment to be “actionable,” the harassment “must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.” Id. at 67, 106 S.Ct. 2399 (citation omitted) (internal quotation marks omitted). The Court later clarified the Meritor Savings Bank framework, articulating the relevant standard for evaluating claims of sexual harassment based on unwelcome sexual communications or advances. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). The Court stated:

Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.

Id. Accordingly, consistent with Harris, hostile work environment sexual harassment claims have both an objective and subjective component. See id.

We have relied on federal law interpreting Title VII in our interpretation of the MHRA. See, e.g., Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 571 (Minn.2008); Goins v. West Grp., 635 N.W.2d 717, 725 (Minn.2001). We continue to do so here.³ Thus, in determining whether the conduct had the purpose or effect of substantially interfering with a plaintiffs employment or created an intimidating, hostile, or offensive employment environment under the MHRA, we consider whether the conduct was sufficiently severe or pervasive to objectively do so and whether the plaintiff subjectively perceived her employment environment to be so altered or affected. See Harris, 510 U.S. at 21-22, 114 S.Ct. 367; Goins, 635 N.W.2d at 725.

With this standard in mind, we turn to the question raised on appeal, which is whether the district court erred in dismissing the Employees’ sexual harassment claims. The standard of review that controls our examination of the district court’s decision does not permit us to engage in fact-finding anew. See Johnson v. Johnson, 250 Minn. 282, 288, 84 N.W.2d 249, 254 (1957) (“It is not within the province of this court to determine issues of fact.... This is true even though this court might find the facts to be different if it had the factfinding function.”); see also Dunn v. Nat’l Beverage Corp., 745 N.W.2d 549, 555 (Minn.2008) (“[A]ppellate courts may not ‘sit as factfinders,’ and are ‘not empowered to make or modify findings of fact.’ ” (citations omitted)); Butch Levy Plumbing & Heating, Inc. v. Sallblad, 267 Minn. 283, 293, 126 N.W.2d 380, 387 (1964) (“It is not within the province of this court to make or amend findings of fact.”). Rather, we review the district court’s factual findings for clear error. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999) (reviewing district court’s findings of fact in a MHRA claim for clear error). That is, we examine the record to see “[i]f there is reasonable evidence” in the record to support the court’s findings. Id. And when determining whether a finding of fact is clearly erroneous, we view the evidence in the light most favorable to the verdict. In re Stisser Grantor Trust, 818 N.W.2d 495, 507 (Minn.2012). To conclude that “[f]indings of fact ... are clearly erroneous” we must be “ ‘left with the definite and firm conviction that a mistake has been made.’ ” Id. (quoting Rogers v. Moore, 603 N.W.2d 650, 656 (Minn.1999)). Our review of legal questions, however, is de novo. LaMont v. Indep. Sch. Dist. No. 728, 814 N.W.2d 14, 18 (Minn.2012).

The parties disagree over whether the district court’s determination that Zapol-ski’s conduct was not sufficiently severe or pervasive so as to be actionable under the MHRA is a question of fact or one of law. The Employers and Zapolski rely on Meyers v. Chapman Printing Co., in which the Kentucky Supreme Court concluded that “whether the evidence presented proves misconduct ‘severe or pervasive’ ” is a question of fact. 840 S.W.2d 814, 821 (Ky.1992). The Employees rely on federal case law for the proposition that the “ ‘ultimate determination’ ” of whether conduct is “ ‘sexual harassment’ ” as defined by the MHRA is a question of law.⁴

Ultimately, we need not resolve the standard of review dispute in this case. It is not necessary to resolve the standard of review question because, as explained below, the district court made two errors of law in its analysis. There is no dispute that we review questions of law de novo. E.g., Frieler, 751 N.W.2d at 566. Because the legal errors may have impacted the decision to dismiss the Employees’ claims, we remand to the district court for further proceedings consistent with this opinion.

The first legal error arises from the district court’s reliance on the fact that Zapolski’s inappropriate workplace behavior was directed at men as well as women. Specifically, the court based its determination that Zapolski’s conduct was not sufficiently severe or pervasive enough to create a hostile work environment, at least in part, on the fact that Zapolski’s sexual comments were not directed solely at female employees. The Employees argue that the court erred as a matter of law in grounding its decision in the fact that Za-polski’s sexually based behavior was directed at both males and females. We agree. The Employees’ claims are for sexual harassment. In accordance with Cummings, a sexual harassment claim does not require proof that the conduct was directed at the victims because of sex. 568 N.W.2d at 422-24. If this element is not independently required under the MHRA, it cannot support the district court’s determination that the conduct was not severe or pervasive enough to constitute actionable sexual harassment under Minn.Stat. § 363A.03, subd. 43(3).

The Employers nevertheless argue that the fact that Zapolski directed sexual comments at both male and female employees is relevant under LaMont, 814 N.W.2d 14. As we stated in LaMont, the gender of the target of inappropriate conduct is “important” to the inquiry into whether the conduct at issue was sufficiently severe or pervasive. Id. at 23. But LaMont is distinguishable. In LaMont, the plaintiff was complaining of a hostile work environment based on gender, not a hostile work environment based on sexual harassment. Id. at 19 (explaining that the MHRA permits “a hostile work environment claim based on sex, separate and apart from” a claim for “sexual harassment that creates a hostile work environment”). Given the nature of the plaintiffs claim in LaMont, it was relevant whether the conduct reflected discrimination between male and female employees. See id. at 21, 23. Here, the sexual harassment claims at issue do not require the Employees to prove discriminatory conduct. See Cummings, 568 N.W.2d at 422-24. The fact that Zapolski directed inappropriate, sexual comments at both male and female employees, therefore, cannot support the district court’s determination that the conduct was not sufficiently severe or pervasive to constitute actionable sexual harassment.

The second legal error arises from the district court’s reliance on the fact that the Employees did not suffer adverse employment actions. Specifically, the court noted throughout its findings that the Employees had not lost promotions, pay, or hours because of their unwillingness to participate in talk of a sexual nature or engage in sexual acts. The Employees argue that the district court erred as a matter of law in focusing on the fact that the Employees did not suffer adverse employment action. We agree.

The district court’s reliance on the fact that the Employees did not lose pay or other benefits demonstrates a fundamental misunderstanding of the nature of the Employees’ causes of action. The fact that the Employees did not lose pay or other benefits could support an ultimate determination that sexual harassment in violation of Minn.Stat. § 363A.03, subd. 43(2) had not occurred. But this is not the type of sexual harassment at issue here. By relying on the absence of an adverse employment action to support the determination that Zapolski’s conduct was not sufficiently severe or pervasive, the district court conflated paragraphs 2 and 3 of subdivision 43 in section 363A.03. The Legislature has made different forms of sexual harassment illegal. Compare Minn.Stat. § 363A.03, subd. 43(2) (stating that sexual harassment occurs where “submission to or rejection of [sexually harassing] conduct ... is used as a factor in decisions affecting that individual’s employment, public accommodations or public services, education, or housing),” with id., subd. 43(3) (stating that sexual harassment occurs where sexually harassing conduct “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”). The district court erred as a matter of law in conflating them.

In sum, two separate errors of law infected the district court’s determination that the Employees did not prove their sexual harassment claims. We are not able to ascertain exactly how the two errors of law impacted the district court’s decision to dismiss the Employees’ claims. Accordingly, we remand to the district court to reevaluate the evidence using the correct legal standard. See State v. Engle, 743 N.W.2d 592, 596 (Minn.2008) (concluding that remand was necessary where the district court made an error of law in findings issued after a bench trial); State v. Mauer, 741 N.W.2d 107, 115-16 (Minn.2007) (holding that remand was necessary where it was unclear that the district court applied the proper legal standard in written findings issued after a bench trial).⁵

II.

Because we are remanding to the district court, we also consider the question presented in the Employees’ request for conditional cross-review. The Employees argue that the court of appeals erred in concluding that Zapolski could not be held individually liable under the aiding and abetting provision of the MHRA, Minn. Stat. § 363A.14. We agree with the court of appeals.

The MHRA makes it illegal for an “employer” to engage in the “unfair employment practice[s]” prohibited by the act. Minn.Stat. § 363A.08, subd. 2. “ ‘Employer’ ” is defined as “a person who has one or more employees,” Minn.Stat. § 363A.03, subd. 16, and “ ‘person’ ” includes, in relevant part, a “partnership, association, [or] corporation,” id., subd. 30. In addition, the MHRA provides a basis for liability under an aiding and abetting theory. Under Minn.Stat. § 363A.14(1), “[i]t is an unfair discriminatory practice for any person ... [to] intentionally ... aid, abet, incite, compel, or coerce a person to engage in any of the practices forbidden by” the MHRA.

The Employees and amicus curiae argue that Zapolski may be held individually liable under Minn.Stat. § 363A.14. Specifically, they emphasize that one of the basic aspects of incorporation is that the entity is distinct from its shareholders. See, e.g., Corcoran v. P.G. Corcoran Co., 245 Minn. 258, 269, 71 N.W.2d 787, 795 (1955) (“The basic theory of corporation law is that a corporation exists as an entity entirely separate and apart from its shareholders.”). The Employees and amicus curiae suggest that a rule that would insulate an individual from aiding and abetting liability when he is the sole owner of a corporation and the sole sexual harasser is troublesome, as it would prevent individual liability for those who have a great deal of power and authority and who are solely responsible for committing harassing conduct.⁶

Zapolski argues that the court of appeals did not err in concluding that he cannot be liable for aiding and abetting the Employers because he is the sole owner of both enterprises and is the sole individual accused of workplace misconduct. Zapol-ski concedes that the Employers, as business entities, each qualify as a “person” under Minn.Stat. § 363A.03, subd. 30, and can be aided or abetted, but contends that he cannot be liable as an aider or abettor under the MHRA because the Employers are vicariously liable for his acts. Thus, according to Zapolski, the Employers’ liability and his liability, based on the exact same conduct, “are equivalent.” Zapolski argues that the Legislature did not intend to create aiding and abetting liability in these circumstances. We agree with Za-polski.

Imposing liability on Zapolski as an aider and abettor would “create[ ] a strange and confusing circularity where the person who has directly perpetrated the harassment only becomes liable through the employer whose liability in turn hinges on the conduct of the direct perpetrator.” Perks v. Town of Huntington, 96 F.Supp.2d 222, 228 (E.D.N.Y.2000) (quoting Lippold v. Duggal Color Projects, Inc., No. 96-CIV-5869, 1998 WL 13854, at *3 (S.D.N.Y. Jan. 15, 1998)). If the Employers have committed unfair employment practices here under a theory of vicarious liability based on Zapolski’s conduct, holding Zapolski hable for aiding and abetting essentially would reverse this liability pathway, making the Employers the primary wrongdoer, whose wrongdoing Zapolski must have aided and abetted.

In addition, holding a sole harasser liable as an aider and abettor of his employer would create individual liability for anyone who perpetrates the harassing conduct at issue. This is so because an individual can always be said to have substantially assisted in an employer’s unfair employment practice when that individual actually perpetrates the conduct that is the basis for the employer’s unfair practice. This result would be inconsistent with the Legislature’s use of the narrower term “employer” when designating liability for unfair employment practices. Minn.Stat. § 363A.08, subd. 2; see also Foley v. Mobil Chem. Co., 170 Misc.2d 1, 647 N.Y.S.2d 374, 381 (1996) (rejecting argument that supervisors should be held liable under aiding and abetting provision of human rights law because it would “essentially ignore, by rendering meaningless in most cases, the legislative choice of the word ‘employer’ ”). Finally, elsewhere in the MHRA, the Legislature provides for individual liability. See Minn.Stat. § 363A.09, subd. 2 (making it “an unfair discriminatory practice for a real estate broker, real estate salesperson, or employee, or agent thereof’ to engage in certain conduct). If the Legislature had intended to create liability for any individual employee who engaged in an unfair employment practice in the employment setting, it could have done so without resorting to a theory of aiding and abetting liability. For the foregoing reasons, we hold that Zapolski cannot be individually liable as an aider and abettor.

Affirmed in part, reversed in part, and remanded.

Concurring in part, dissenting in part, WRIGHT, PAGE, JJ. Concurring in part, dissenting in part, ANDERSON, PAUL H„ PAGE, JJ.

1 . Appellant Two Harbors Fish Company d/b/a Lou's Fish House is a Minnesota corporation located in Two Harbors, Minnesota. Appellant BWZ Enterprises is a Minnesota limited liability company doing business in Two Harbors. Appellant Brian Zapolski is the sole owner of both entities. Lou’s Fish House consists of a retail location and an area for smoking meat. BWZ Enterprises owns a motel that is in the same location as Lou’s Fish House. The Employees were employees of Two Harbors Fish Company and BWZ Enterprises.

2 . The dissents contend that we are retreating from Continental Can today in remanding this case. We disagree. Continental Can was decided under an early version of the MHRA that provided for trial before and fact-finding by a hearing officer within the Department of Human Rights. 297 N.W.2d at 243-45; see also Minn.Stat. § 363.071 (1978). Appeals from those hearings were taken to the district court. Minn.Stat. § 363.072 (1978). In Continental Can, the hearing officer, acting as the fact-finder, determined that the employer violated the MHRA. 297 N.W.2d at 243. On appeal to the district court, the court "made supplemental findings of fact instead of confining itself to a review of the hearing examiner's decision.” Id. at 250. We reversed the district court’s decision and reinstated the fact-finder's conclusions. Id. at 251. The result in Continental Can reinforces the conclusion that the proper scope of appellate review does not encompass appellate fact-finding. This conclusion is consistent with the result we reach here to remand this case to the fact-finder for application of the correct legal standard.

3 . Citing Cummings v. Koehnen, 568 N.W.2d 418 (Minn.1997), the court of appeals questioned the continued applicability of Title VII jurisprudence in the context of MHRA sexual harassment claims. Rasmussen, 817 N.W.2d at 196-97. The issue in Cummings involved the MHRA’s sexual harassment language. 568 N.W.2d at 420. We held that “under the MHRA, a plaintiff alleging sexual harassment by a person who is of the same gender must prove that the conduct complained of meets the elements set forth in the definition of sexual harassment,” but need not also show that the harassment was "based on sex” in that the “harassment affected one gender differently than the other.” Id. at 423-24 (internal quotation marks omitted). We reasoned that because the Legislature had included in the definition of “discrimination based on sex” conduct that constituted "sexual harassment,” it is "not necessary for a sexual harassment plaintiff to prove that the harassment occurred 'because of sex' in addition to proving the elements of sexual harassment” as defined under the MHRA. Id. at 422 (internal quotation marks omitted). To read the statute otherwise would have led to the "absurd result[ ]" in that those in a single-gender workplace and those “who work with an ‘equal opportunity harasser,' who harasses sexually both males and females" would remain unprotected by the statute. Id. at 423. We noted that our conclusion was a departure from the federal law "where proof of a disparate effect on one gender is a necessary element of any sexual harassment claim.” Id. at 422 n. 5. While Cummings is a departure from federal case law, that departure is narrow, and neither party argues that the codification of the term "sexual harassment” in the MHRA or our decision in Cummings suggests that we should abandon the general framework established under Title VII case law.

4 . The federal circuit courts disagree as to the standard of review that applies to hostile work environment sexual harassment claims. But the majority of federal circuit courts consider whether the conduct was objectively and subjectively severe or pervasive enough to create a hostile work environment to be a question of fact, subject to a clearly erroneous standard of review. See, e.g., Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 999 (10th Cir.1996) ("We review the district court’s findings of no sexual harassment, adequate remedial measures, and no constructive discharge, under a clearly erroneous standard.”); Rennie v. Dalton, 3 F.3d 1100, 1106 (7th Cir.1993) (stating that, as applied to a hostile work environment sexual harassment claim, "Rule 52(a) of the Federal Rules of Civil Procedure requires that we review the trial court’s finding of facts under a clearly erroneous standard”); Dwyer v. Smith, 867 F.2d 184, 187 (4th Cir.1989) ("In Tide VII actions, a district court’s factual determinations are governed by Rule 52(a)’s clearly erroneous standard even if they resolve the ultimate issue of the action — such as, whether there was discrimination, sexual harassment, or discriminatory intent.”); Hall v. Gus Constr. Co., 842 F.2d 1010, 1013 (8th Cir.1988) ("We must assess the trial court’s factual finding that the women were subjected to sexual harassment under the clearly erroneous standard of review.”); Henson v. City of Dundee, 682 F.2d 897, 906 (11th Cir.1982) ("Normally, the court of appeals in a civil rights case will respect a finding of historical fact premised upon a credibility choice made by the district court unless that finding is clearly erroneous.”). But see Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 871 (9th Cir.2001) ("The district court’s conclusions that Sanchez failed to establish his sexual harassment and retaliation claims present mixed questions of law and fact which we review de novo.”); Collins v. Baptist Mem’l Geriatric Ctr., 937 F.2d 190, 195 (5th Cir.1991) ("The district court’s finding is a mixed conclusion of law and fact, subject to the independent review of this court.”).

5 . Justice Wright's dissent concludes that remand is not necessary because the evidence supports only one conclusion — the Employees proved actionable sexual harassment. The dissent acknowledges, however, that at least the subjective prong of a sexual harassment claim presents a question of fact that is reviewed under the clearly erroneous standard. Under the standard the dissent advocates, our obligation would be to construe the evidence in the light most favorable to the district court’s verdict. In re Stisser Grantor Trust, 818 N.W.2d at 507. While the dissent acknowledges this rule, the dissent does not apply it. For example, rather than construing the evidence in the light most favorable to the verdict, the dissent faults the district court for not fully appreciating "the full measure of Rasmussen’s perception of her work environment.” And, in reaching the conclusion that the evidence as to whether Rasmussen subjectively perceived her work environment supports only one conclusion, the dissent overlooks Rasmussen’s testimony that she told others that she "liked” her job and the fact that Rasmussen recommended that Moyer apply for a position with the Employers. As the district court found, Rasmussen's recommendation to Moyer "calls into question the severity and frequency of the allegedly offensive comments and behaviors as perceived by Rasmussen.” The dissent also faults the district court for relying on the fact that the Employees did not seek treatment or counseling. The dissent notes that the Employees were not required to seek treatment or counseling in order to sustain their MHRA claims. But the dissent cannot contest the fact that the Employees did not seek such treatment. Simply because such treatment is not required to state a claim under the MHRA does not mean that the failure to seek such treatment is irrelevant as a matter of law to the Employees' subjective perception of their work environment. See Goins, 635 N.W.2d at 725 ("In ascertaining whether an environment is sufficiently hostile or abusive to support a claim, courts look at the totality of the circumstances.”). These few examples are sufficient to show that, in our view, the record, when construed in the light most favorable to the verdict, is not as Justice Wright’s dissent finds it to be. In discussing these examples we do not intend to condone the disgusting behavior at issue in this case or to suggest how the district court should resolve the matter on remand.

6 . We have not addressed whether the definition of " '[e]mployer’ ” in Minn.Stat. § 363A.03, subd. 16, allows for individual liability, though Minnesota federal courts considering the issue have concluded that the MHRA does not impose individual liability on supervisors or managers. Mehl v. PortaCo, Inc., 859 F.Supp.2d 1026, 1034 (D.Minn.2012); Waag v. Thomas Pontiac, Buick, GMC, Inc., 930 F.Supp. 393, 406-08 (D.Minn.1996). Here, the Employees do not argue that Zapolski is individually liable as an "employer'' under the MHRA. Thus, given the nature of the Employees’ claims, the issue of whether, or under what circumstances, an individual may be held liable as an "employer” under the Act is not presented in this case.