Senate Committee Substitute

SCS/SB 188 - Currently, under the Missouri Human Rights Act (MHRA), a practice is unlawful when the protected trait is a contributing factor in the decision to discriminate. This act changes that standard to a motivating factor standard. The plaintiffs in employment discrimination cases have the burden of proving this standard.

Currently, persons acting in the interest of employers are considered employers under the MHRA and are liable for discriminatory practices. This act modifies the definition of employer to exclude those individuals. The act similarly excludes the United States government, corporations owned by the United States, individuals employed by employers, Indian tribes, certain departments or agencies of the District of Columbia, and private membership clubs from the definition.

In order to be unlawful, the employee's actions shall be a motivating factor leading to the discharge instead of a contributing factor, as is the case under current common law. Prevailing parties in such cases shall not be entitled to attorneys fees.

In employment discrimination cases, it shall only be unlawful if an employer aids and abets someone to violate the MHRA or discriminate against someone opposing practices prohibited by the MHRA or because they associate with someone protected by the MHRA.

The Human Rights chapter is intended to be consistent with Title VIII of the Civil Rights Act and follow the work sharing agreement between the commission and the Equal Employment Opportunity Commission. The act directs the courts to rely heavily on judicial interpretations of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act when deciding MHRA employment discrimination cases.

The act abrogates McBryde v. Ritenour School District to require courts to allow a business judgment jury instruction whenever offered by the defendant.

The act recommends two methods to the courts for analyzing employment discrimination cases as a basis for granting summary judgment. The mixed motive and burden shifting analysis are based on court rulings interpreting federal law and the act abrogates numerous Missouri cases in urging the courts to consider the methods highly persuasive.

Parties to a discrimination case under the MHRA may demand a jury trial.

Damages awarded for employment cases under the MHRA and whistleblower actions shall not exceed back pay and interest on back pay and $50,000 for employers with between 5 and 100 employees, $100,000 for employers with between 100 and 200 employees, $200,000 for employers with between 200 and 500 employees, or $300,000 for employers with more than 500 employees. Punitive damages shall not be awarded against the state of Missouri or political subdivisions in MHRA cases.

The act abrogates all Missouri case law relating to the public policy exceptions to the employment at-will doctrine. Employers are barred from discharging the following persons:

• a person who reports to an unlawful act of the employer or its agent to governmental or law enforcement agencies, officer, or the employee's human resources representative employed by the employer;

• a person who reports to an employer serious misconduct of the employer or its agent that violates a clear mandate of public policy as articulated in a constitutional provision, statute, regulation promulgated pursuant to statute, or a rule created by a governmental body;

• a person who refuses to carry out a directive issued by an employer or its agent that, if completed, would be a violation of the law;

• or a person who engages in conduct otherwise protected by statute or regulation.

This act is similar to HB 1456 (2006), SB 168 (2007), SB 1046 (2008), HB 799 (2009), HB 227 (2009),SB 374 (2009), HB 1488 (2010), and SB 852 (2010).


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