Diversity & Inclusion, HR Management & Compliance

Conjunction Junction, What’s Your Function? Apparently, Deciding Harassment Cases

The words “and,” “but,” and “or” are conjunctions. In case you’ve forgotten, Schoolhouse Rock taught many of us in grade school that conjunctions link words, phrases, and clauses together to form sentences. But in case you were sleeping in class that day, the Minnesota Court of Appeals recently provided a great crash course when it decided a dispute between ex-lovers hinging on the disjunctive conjunction “or.”

Facts

Breana and Matthew Borth were previously married. Before their divorce, Breana sent Matthew a partially nude photo via Snapchat. The social media platform allows you to send pictures and videos that automatically disappear 10 seconds after the recipient views the message.

One caveat: Snapchat recipients may take a screenshot of the picture if they want to hold on to the image for later viewing. That’s what happened here. Matthew sent a screenshot of the picture to Breana’s current significant other and used it to try to blackmail her into a custody arrangement.

Breana filed a petition for a harassment restraining order (HRO), which was initially granted ex parte (or for one side only). After a full hearing, however, the district court dismissed the petition, holding it lacked the intent required for an HRO under Minnesota law.

Minnesota’s governing law permits HROs to be granted on a “single incident of nonconsensual dissemination of private sexual images” or for “repeated incidents of intrusive or unwanted acts, words or gestures.” But the question in Breana’s case is whether qualifying language later in the statute (only if “intended to have a substantial adverse effect on the safety, security or privacy of another”) applied to the first phrase, the second phrase, or both.

The district court acknowledged sending a private sexual image to a third-party could serve as a basis for an HRO. The court interpreted the statute, however, to require the dissemination to “be done with the intention of having a substantial effect on the safety, security, or privacy of another.”

Court’s Ruling

Breana appealed the court’s denial of the HRO. The crux for analysis on appeal turned on whether the “substantial adverse effect” language applied only to the “repeated incidents” language or whether it also modified the “single incident” language found in subdivision 1(a)(1).

Breana argued the “substantial adverse effect” language doesn’t modify the single-incident conduct—just the “repeated incidents.” Citing grammar rules from The Chicago Manual of Style, the court agreed with her, reasoning that since the types of conduct are separated by the disjunctive conjunction “or,” the qualifying phrase can’t be interpreted to modify the single-incident” phrase, only the “repeated incidents” (plural phrase) thereafter. In simpler terms, “or” is used in the statute as a function word to indicate mutually exclusive alternatives.

Takeaways for Employers

The holding in Breana’s harassment case demonstrates grammar matters, just maybe not for the reasons you thought. It serves as a good reminder that policies, contracts, and other legal documents need to be properly drafted while remembering our disjunctive “or.”

Kau J. Guannu is an attorney with Felhaber Larson in Minneapolis, Minnesota. You can reach her at kguannu@felhaber.com.