Despite the Missouri Legislature’s many past efforts to change Missouri’s employee friendly employment laws, the Republican dominated legislature has continually failed to pass a law that favors employers because, until the last election, there was a sure veto from Missouri’s Democratic governor. Now, with the election of Missouri’s Republican governor, Eric Greitens, the majority Republican legislature has jumped at the opportunity to revisit its long-desired previously proposed amendments and changes to the Missouri Human Rights Act.
In 2011, three bills passed by the Missouri legislature (SB43, HB550 and HB552) were vetoed by the Democratic governor and have been resurrected. The currently proposed legislation is essentially identical to those prior bills and will bring Missouri’s law in line with the statutory framework of Title VII, the primary federal employment law. The main change and the most exciting for employers is that the new law, if passed, will do away with Missouri’s “contributing factor” standard for adverse employment decisions. The “contributing factor” standard has been easy for employees to meet. Under the current version of the MHRA, employees need only to show that a prohibited consideration (age, race, gender, etc.) contributed to the adverse employment action. In other words, despite mountains of evidence of employee misconduct, poor performance, etc., the employee really needs to only show that the prohibited consideration entered the employer’s mind when the adverse employment decision was made. Under the new version of the law, the employee plaintiff will be required to establish that the claimed act of unlawful bias was a “motivating factor” for the challenged employment decision.
The new version of the MHRA contains a section to be known as the “Whistleblower’s Protection Act” which is intended to bring “whistleblower cases” in line with the anti-discrimination law as set forth in the new version of the MHRA and specifically rejecting common law standards and remedies in conflict with the MHRA standards for other types of employment cases.
Other changes to the MHRA include the following:
- It requires Missouri courts to rely upon judicial interpretations of Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.
- New caps are imposed on damages for a prevailing plaintiff:
- $50,000 for employers with 6 – 99 employees;
- $100,000 for employers with 100 – 200 employees;
- $200,000 for employers with 201 – 500 employees; and
- $300,000 for employers with more than 500 employees.
- Excludes supervisors and others from individual liability by expressly removing them from the definition of “employer.”
- If requested, the trial court must give a business judgment instruction to the jury which states that a jury must not second-guess a business decision made by the employer if the stated business decision is for a non-discriminatory reason.
- Missouri courts are encouraged to use summary judgment as a tool to remove “factually unsubstantiated cases from crowed dockets.” Additionally, when considering dispositive motions, Courts are to use the burden shifting analysis adopted by the United States Supreme Court in McDonnell Douglas.
If, as expected, the new legislation passes in its current form, Plaintiffs will have a more difficult time prevailing on cases of employment discrimination and retaliation. In addition, Plaintiffs will find their remedies significantly reduced.