Friday, July 7, 2017

Changes to Missouri’s Employment Discrimination Laws


Missouri Senate Bill 43 was signed into law on June 30, 2017. There has been a fair amount of discussion about the bill, but now that it has become law many employees may be left asking, “What exactly changed?” The main answer is that the Missouri Human Rights Act (“MHRA”) has been amended to more closely reflect and follow Title VII of the Civil Rights Acts—the federal anti-discrimination law. For many years, the MHRA made it much easier for employees that had been discriminated against to succeed in bringing claims against their employers. While the amendment will prevent some claims, most discrimination in Missouri is still actionable; an employee can bring suit and succeed against his or her employer. Below is a brief discussion regarding ways in which the MHRA has been amended by the new law.

Motivating Factor
The key change in the MHRA is the level of discriminatory intent needed to successfully bring a claim. Missouri had previously required that the employee’s characteristic (race, religion, gender, etc.) be a “contributing factor” to find discrimination. This meant that if discrimination played even a 1% role in the decision to take the adverse employment action—firing, demoting, or other negative employment-related treatment—the employee had an action for discrimination and could recover. This requirement has now been changed to align with Title VII, requiring that the employee prove that discrimination was a “motivating factor.” As the United States Supreme Court noted in Price Waterhouse v. Hopkins, to be a motivating factor, the adverse action would not have been taken but for discrimination on the part of the employer. To put it another way, if the employee lacked the characteristic (race, gender, etc.), the employer would not have taken the negative action.
Aside from requiring more discriminatory intent before holding an employer liable, this change will give employer’s a better chance to have motions for summary judgment granted under the MHRA. Currently, surviving a motion for summary judgment is a big obstacle under Title VII discrimination cases. If successful, this motion prevents the case from ever getting to a jury. Under the contributing factor standard, it was nearly impossible for an employer to be granted summary judgment. To do so, the court would have to agree that there was no disputed fact that the employer was not motivated at all—even 1%—by the discrimination. Now, these motions will be granted if the court is convinced that there is no disputed fact that the employer would have taken the action without discrimination factoring in. This is a much easier thing for employers to prove. As a result, summary judgment will likely become the hurdle to trial under the MHRA that it has been under Title VII.  

Damage Caps
            The MHRA formerly had no limits on the amount of damages a jury could choose to award a victim of discrimination. Thus, most victims of discrimination would receive damages accounting for back pay (when adverse action had a direct effect on pay) and interest. The awards also included attorney’s fees, non-economic damages covering humiliation and emotional suffering, and punitive damages when it was shown the employer acted particularly heinously.
            The amended MHRA features damage caps based upon the size of the employer. Back pay and interest are uncapped, but the additional amount of damages, including punitive damages, is limited to an amount between $50,000 and $500,000. Again, the General Assembly used Title VII as a model for these limits. Under Title VII, all actual and punitive damages, including back pay and interest, are limited based on the employer’s size. Title VII’s amounts fall between $50,000 and $300,000. Thus, even under these new damage caps included in the MHRA, it is possible to recover more than under Title VII, depending on the amount of back pay and interest the employee is awarded.   

Employer size
Former MHRA
Current MHRA
Title VII
Employer with 100 or fewer employees
No Limit
$50,000
+ back pay & interest
$50,000
Employer with 101 to 200 employees
No Limit
$100,000
+ back pay & interest
$100,000
Employer with 201 to 500 employees
No Limit
$200,000
+ back pay & interest
$200,000
Employer with more than 500 employees
No Limit
$500,000
+ back pay & interest
$300,000

Supervisor Liability
            Under both the former MHRA and the amended statute, as well as Title VII, supervisors that discriminate create vicarious liability for their employer. This simply means that if the supervisor discriminates, his or her actions are attributed to the employer and the employer can be made to answer for the actions. Formerly under the MHRA, supervisors could also individually be sued for discrimination. In terms of recovery, this meant very little: most supervisors lacked the financial resources to satisfy a judgment, meaning an employee would have to sue the employer to get any recovery. However, this did provide one advantage to plaintiffs, as it generally allowed case to be filed and kept in state court. Cases can be “removed” to federal court when the plaintiff and defendants are from different states. Thus, when the employer is a large retail chain, the chain is probably not considered a “citizen” of Missouri because it has its headquarter in another state; the supervisor of the employee likely does live in Missouri, though. Having a “Missouri defendant” keeps the case from being removed to federal court. Being removed to federal court is not a death sentence for plaintiffs, but federal court does tend to favor defendants. It requires unanimous jury verdicts, fewer jurors, and stricter rules of evidence, making a case hard to prove.
            The amendments to the MHRA have changed the ability to sue supervisors for discrimination. Now, the definition of who can be sued under the act has been limited to the employer itself. This will likely result in more cases being removed to federal court. For a plaintiff, this is not ideal but it is truly the least concerning of the changes. Experienced counsel should be familiar with federal court and can pursue the claim in either venue.


            These are just some of the changes that Senate Bill 43 made to the MHRA. Discrimination is still very actionable in Missouri. This means that if you feel you have been discriminated against, you should not hesitate to contact experienced legal counsel. Unlike most amendments to law, Senate Bill 43 is based largely on already addressed terms and concepts found within Title VII. This means that pursuing your claim will not be a venture into the unknown for counsel experienced with the workings of Title VII. 

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