One Step Remains to Correct the Missouri Human Rights Act

By Curtis R. Summers © Littler May 18, 2017

On May 9, the Missouri Legislature passed a significant amendment to the Missouri Human Rights Act (MHRA), which would bring the act into closer alignment with federal and other states' anti-discrimination statutes. All that remains is for Gov. Eric Greitens to sign the bill into law.

S.B. 43 introduced several amendments to existing law on discrimination, harassment, and retaliation in the employment context. It cleared the Senate in early March. On Monday night, after extensive and impassioned debate, the House of Representatives voted 98-30 to pass the bill with only a few days remaining in the 2017 legislative session.

The amendment makes several key changes to the MHRA landscape for Missouri employers. Here are some of them.

Causation Standard

Although contrary to the MHRA's express language, courts currently apply a "contributing factor" standard, as adopted by the Committee on Jury Instructions—not the legislature—in 2005.

At least one Missouri court has interpreted the "contributing factor" standard to mean the protected status or activity "contributed a share in anything or has a part in producing the effect."

That has resulted in plaintiffs' attorneys commonly tearing off a tiny corner of a piece of paper or analogizing to a single drop of poison in a large body of water to explain to a jury just how low the bar is for a plaintiff to meet his/her burden of establishing a violation of the MHRA.

The MHRA amendment changes the standard to "motivating factor" and abrogates the current Missouri Approved Instruction on the "contributing factor" standard. The amendment defines "motivating factor" as "the employee's protected classification actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action."

The "motivating factor" standard is intended to bring the standard closer to that used in federal anti-discrimination laws. The amendment also endorses the burden-shifting framework used in federal court.

Individual Liability

Based on Missouri court decisions, an individual supervisor currently may be personally liable for a violation of the MHRA, giving plaintiffs the ability to sue both the company and the individual.

Among other things, it allows plaintiffs to destroy complete diversity of citizenship when suing a foreign corporation, meaning cases stay in Missouri state courts regardless of where a business is organized.

The amendment removes individual liability, meaning supervisors cannot be held personally liable and, in many cases, diversity of citizenship will allow removal to federal court.

Damages

As it stands, punitive damages in MHRA cases lack any real cap. Instead, the cap for punitive damages is floating. Punitive damages are capped at the greater of $500,000 or five times the actual damages recovered (including back pay, emotional distress, front pay, and attorneys' fees). Given the inclusion of attorneys' fees in actual damages based on a Missouri Supreme Court decision, MHRA judgments are routinely large and virtually unrestrained, which is in stark contrast to the caps in federal court. The amendment changes that.          

Under the amendment, exclusive of attorneys' fees, damages awarded under the MHRA cannot exceed: (1) actual back pay and interest on it and (2) where the defendant has:

    • More than 5 employees, but less than 100 employees: $50,000,
    • More than 100 employees, but less than 200 employees: $100,000.
    • More than 200 employees, but less than 500 employees: $200,000.
    • More than 500 employees: $500,000.

The caps are similar to, but still more favorable than, the federal damages caps.

Charges of Discrimination

In Farrow v. Saint Francis Medical Center, the Missouri Supreme Court found an employer must challenge a charge of discrimination's timeliness with the Missouri Commission on Human Rights (MCHR) and then via an action for judicial review under RSMo Chapter 536. If an employer did not pursue the timeliness issue through those avenues, then it lost its ability to challenge a late-filed charge. That process is wildly different than the process for challenging the timeliness of EEOC charges.

The amendment abrogates the Farrow case and makes timeliness a jurisdictional prerequisite to bringing a lawsuit. In other words, if the employee does not file a charge within 180 days of the alleged discriminatory act, then Missouri courts lack jurisdiction to hear the lawsuit. It similarly deprives the MCHR of jurisdiction to investigate the charge or take any action other than dismissal. An employer may raise the timeliness defense at any time. Additionally, the MCHR may issue a notice of right to sue only pursuant to the charging party's request for one.

Abrogation of Certain Decisions

In addition to abrogating Farrow with respect to timeliness issues, the amendment also abrogates other anti-employer judicial decisions, including:

  • McBryde v. Ritenour School District, as it relates to administering a business judgment instruction in a jury trial. The amendment requires a business judgment instruction.
  • Daugherty v. City of Maryland Heights, as it relates to the "contributing factor" standard and abandonment of the McDonnell Douglas burden-shifting framework.
  • Hurst v. Kansas City Mo. School District, as it relates to providing Missouri Approved Instruction 19.01 on multiple causes of damage.
  • Thomas v. McKeever Enterprises, Inc., as it relates to the decision that juries shall not receive an instruction that plaintiff must prove "but for" causation.

Wrongful Discharge

Currently, Missouri has a common-law wrongful discharge action that allows an employee to sue for retaliation when he/she claims an employer terminated his/her employment for complaining about, opposing or refusing to engage in conduct that violates a clearly-mandated Missouri public policy. Courts apply the "contributing factor" standard.

The amendment codifies the wrongful discharge claim in the Whistleblower Protection Act, which protects an employee who:

  • Reports an employer's unlawful act to the proper authorities.
  • Reports to the employer serious misconduct in violation of a clear mandate of public policy found in the constitution, statute or regulation.
  • Refuses to carry out an employer's unlawful directive.

It does not protect managers where the manager's job is to report or provide professional opinion on the conduct in question. It also does not protect employees who report alleged unlawful conduct to the person the employee claims acted unlawfully. Under the new Whistleblower Protection Act, if signed, the "motivating factor" standard will apply. It will also provide damages in the form of back pay and medical bills, liquidated damages (i.e., double damages), and attorneys' fees. The act is also intended to prevent courts from creating further exceptions to the at-will employment doctrine.

If Gov. Greitens signs the bill, it will become law effective Aug. 28.

Of note as well: the Missouri Senate passed a similar bill on workers' compensation retaliation, which will also head to Gov. Greitens to consider.

Curtis R. Summers is an attorney with Littler in Kansas City, Mo. © Littler. All rights reserved. Reposted with permission.

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