Authored by Thomas R. Chibnall
May 11, 2017
On May 8, 2017, the Missouri Legislature approved Senate Bill 43, which substantially changes the Missouri Human Rights Act’s (MHRA) provisions on employment discrimination, making Missouri’s employment discrimination laws much more akin and similar to the Federal laws found under anti-discrimination statutes such as Title VII, the ADA, and the ADEA. In addition to making changes to the MHRA’s required burden of proof, Senate Bill 43 also places damage caps on actions brought by plaintiffs under this new law and alters whistleblower protections.
Under Senate Bill 43, plaintiffs are now required to meet the burden of proving that their protected class was the “motivating factor” in the adverse decision rendered by their employer. This standard mirrors the standard under federal law. It creates a higher burden for plaintiffs to meet in litigating their cases. Currently, plaintiffs must simply show that their protected class (i.e. race, color, religion, national origin, ancestry, sex, disability, and age) was a “contributing factor” in the adverse action— a dramatically reduced burden of proof for plaintiffs. Because of this lower standard, plaintiffs in Missouri have had greater success avoiding summary judgment motions in state court on employment discrimination matters. Under Senate Bill 43, state courts would be positioned to utilize summary judgments more frequently to resolve and determine employment discrimination cases, resulting in less jury trials and potentially reducing the amount of time necessary to resolve a case.
Currently in Missouri, employers sued for employment discrimination will routinely find the employee or former employee also names a supervisor or manager as an individual defendant in the lawsuit. Pursuant to Senate Bill 43, individual supervisors and managers will be excluded from personal liability as they are no longer included in the definition of “Employer.” The Bill states that “Employer” will not include an individual employed by an employer, meaning supervisors, managers, human resources departments, and others in similar roles.
This provision will certainly offer more appeal to out-of-state employers, as under this new definition of “employer,” out-of-state employers will have greater opportunity to remove cases to federal court based on diversity of citizenship.
Senate Bill 43 also proposes a radical change to recovery for plaintiffs suing for employment discrimination. The Bill sets forth damages caps related to the size of the employer. For plaintiffs prevailing in litigating their discrimination suits against employers, the bill sets forth the following damage caps, insulating employers from larger damage awards:
Under this Bill, whistleblowers have to meet the “motivating factor” standard in proving their case. Additionally, the Bill excludes the state and political subdivisions from whistleblower liability. For whistleblowers, their recovery will include back pay plus reimbursement for medical bills, which can be doubled if the employer’s conduct is deemed outrageous. However, whistleblower plaintiffs will likely not be entitled to the same range of damages as they currently are under the MHRA. For example, whistleblowers would not be entitled to reinstatement.
If Governor Greitens signs the bill, it will become law effective August 28, 2017. As Senate Bill 43 makes its way to Governor Greitens, Lowenbaum Law Employment attorneys are available to answer any questions you may have regarding these proposed changes to employment discrimination law in Missouri. Lowenbaum Law will continue to monitor this legislative process and provide updates and clarity along the way.