After years of Missouri employers seeking changes to the state’s primary employment anti-discrimination law, amendments to the Missouri Human Rights Act (MHRA) recently went into effect.
Missouri Senate Bill 43, the legislative vehicle for the MHRA amendments, passed the Missouri General Assembly during the 2017 session and was signed by Gov. Eric Greitens on June 30, 2017. Senate Bill 43’s provisions became effective on August 28, 2017, although some procedural aspects of the new law may have retroactive application. Retroactive application of some parts of the MHRA is a complex issue outside the scope of this blog entry, but Missouri employers would be well advised to not automatically assume that current claims are exempt from the new favorable amendments and to seek competent counsel on that issue.
Issues of retroactivity aside, the MHRA amendments address a number of case-made principles of law that have vexed Missouri employers over the last decade or so. Among the notable changes in the law are the following:
- Higher burden of proof standard for plaintiffs: The new law changes a plaintiff’s burden of proof for establishing illegal discrimination from requiring that the plaintiff show that the alleged illegal discrimination was a “contributing factor” to requiring that the alleged conduct was a “motivating factor” that “actually played a role in the adverse action” and had a “determinative influence” on the adverse decision. This change effectively undoes the Missouri Supreme Court’s 2007 decision in Daugherty v. City of Maryland Heights. The likely practical effect of the change is to increase the odds that a defendant employer may be able to obtain summary judgment, ending a case before trial, where the plaintiff is unable to meet the new, higher standard.
- No more individual liability for supervisors: The MHRA amendments undo case law that had made supervisors (and not just the actual legal employing company) liable for employment discrimination, effectively reversing the Missouri Supreme Court’s 2009 decision in Hill v. Ford Motor Co.
- New damage caps: Under the old law, punitive damages were capped at the greater of $500,000 or five times the actual damages. However, actual damages included back pay, front pay, emotional distress and attorney’s fees, which could lead to the possibility of rather sizeable punitive damage awards. The new law damage caps do not include actual back pay and interest on back pay, or attorney’s fees. The new statutory damage caps apply to all other actual damages, such as “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses,” and also cover punitive damages. The new caps are tiered based on employer size as follows:
- $50,000 for a defendant with 6 to 100 employees;
- $100,000 for a defendant with 101 to 200 employees;
- $200,000 for a defendant with 201 to 500 employees; or
- $500,000 for a defendant with more than 500 employees.
- Clear language that timely filing of charge of discrimination is jurisdictional: The Missouri Supreme Court’s Farrow v. Saint Francis Medical Center case in 2013 had held that an employer waived the right to challenge an untimely filed charge of discrimination because it had not raised the issued before the Missouri Commission on Human Rights, and further suggesting that an employer might have to file a mandamus action on the issue. The MHRA amendments cut through this procedural confusion and make clear that the timeliness of a charge is a question of jurisdiction that the MCHR must address and which an employer can raise at any time.
- Creation of Missouri Whistleblower’s Protection Act: The MHRA amendments codify case law exceptions to the at-will employment doctrine and also provide clarification on who is a “protected person” subject to the law’s protection. The Whistleblower’s Protection Act also limits some remedies available for a whistleblower claim, but adds the ability for a prevailing party to recover its attorney’s fees. A whistleblower defendant can recover its attorney’s fees if it prevails, but only upon a showing that the whistleblower claim it defeated was “without foundation.”
In sum, the amended MHRA provides significant new procedural and substantive advantages to Missouri employers defending claims of discrimination. As always, though, the best medicine remains prevention, rather than cure. For additional guidance on the new MHRA or other employment issues, contact a Tueth Keeney employment attorney.
Kameron Murphy is a member of the firm’s Employment and Labor practice group and is a frequent presenter on employment law issues. He advises employers on labor relations, wage and hour issues, personnel policies, and in employee discipline and termination matters. He also represents Missouri and Illinois employers on labor law issues including union election campaigns, collective bargaining negotiations, grievance resolution and arbitration, and unfair labor practice proceedings. Prior to joining Tueth Keeney, Kameron practiced in commercial litigation for a well-respected mid-size St. Louis firm. He has extensive experience in all phases of litigation in Illinois and Missouri state and federal courts.