United States: One Step Remains In Correcting The Missouri Human Rights Act

On May 9, 2017, 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 Governor Eric Greitens to sign the bill into law.

Missouri Senate Bill 43 introduced several amendments to existing law on discrimination, harassment, and retaliation in the employment context. It cleared the Senate in early March 2017. 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. Some of them are:

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.

Punitive 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: (1) reports an employer's unlawful act to the proper authorities; (2) reports to the employer serious misconduct in violation of a clear mandate of public policy found in the constitution, statute, or regulation; or (3) 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 August 28, 2017. Of note as well: the Missouri Senate also passed a similar bill on workers' compensation retaliation, which will also head to Gov. Greitens to consider.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.