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.
