There are several bills currently pending in the legislature designed to modify the Missouri Human Rights Act. I’m going to make a sketch of these here understanding that these modifications are complex and deserve much deeper treatment than afforded by this format.
HB 550 – This bill was introduced by Judiciary Committee Chairman Joe Don McGaugh (R – Chariton, Carroll and Ray). Rep. McGaugh also served on the Special Committee on Litigation Reform, the Joint Committee on Administrative Rules and the Joint Committee on Justice System. This bill had a public hearing before the Special Committee on Litigation Reform on February 13 along with many other bills comprising a general tort reform package.
This bill seeks to change the causation standard under the MHRA by changing the definition of “because” or “because of” to mean the motivating factor. In other words, it would be a defense to a discrimination claim that firing a person was not the motivating factor, but was still a factor. This would put the Missouri standard closer to the federal standard for employment discrimination claims.
Along with that change, the bill would require that juries be instructed on the business judgment rule in discrimination cases with the express intent of abrogating McBryde v. Ritenour Sch. Dist., 207 S.W.3d 162 (Mo. App. E.D. 2006) and its progeny. The business judgment rule creates a rebuttable presumption in favor of management that it acted for a proper business purpose and that judgment should not be second-guessed. In other words, management mistakes, even if very stupid, are not actionable. It must be more than a mistake or bad call to create liability for the business.
In line with the causation change, the bill would require courts to rely heavily on federal precedent from Title VII, age discrimination, and disability discrimination cases in applying the MHRA. In accord with this, the bill recommends an analysis for courts to apply in determining summary judgment motions that would likely result in summary judgment being granted more in Missouri state court.
The bill also includes significant damages caps that limit recovery to actual back pay plus interest and then other damages tiered based on the number of employees the business has. For instances, if a business has less than 100 employees than other damages are limited to $50,000. If a business has more than 500 employees these other damages would be limited to $300,000. Based on reported verdicts and settlements, this would have a dramatic effect.
Finally, the bill includes a Whistleblower’s Protection Act which essentially codifies the common law exception to the at will employment doctrine as to whistleblowers. The bill defines whistleblower as a person who has reported to the proper authorities an unlawful act or serious misconduct of the employer that violates a clear mandate of public policy. The bill limits the potential damages available to a whistleblower, including a prohibition of punitive damages.
HB 552 is nearly identical. It was introduced by Assistant Majority Floor Leader Kevin Austin (R-Greene County). This bill was also subject of a public hearing on February 13.
HB 676 is also nearly identical. It was introduced by Rep. Dean Plocher (R – St. Louis) and was also the subject of a public hearing on February 13.
SB 43 goes even further in establishing a “but for” causation standard for MHRA actions. That is to say that the employee would have to prove that the employer would have not fired her or taken an adverse employment action but for the protected status. The bill also has the same abrogation of McBryde v. Ritenour Sch. Dist., 207 S.W.3d 162 (Mo. App. E.D. 2006) concerning the business judgment rule. The bill would expressly abrogate all existing Missouri approved jury instructions concerning the MHRA. This bill has the same damages limitations as found in the House bill. Finally, the Senate version includes a Whistleblower section similar to the House version.
SB 43 was initially filed by Senator Romine (R – Iron, Reynolds, St. Francois, Ste. Genevieve, Washington and Jefferson counties). It has been through the Small Business and Industry Committee and that version is now on the Senate’s formal calendar Bills for Perfection.
Tim West, MO Legislative Monitor
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