SB 43 Modifies the law relating to unlawful discrimination
Sponsor: Romine
LR Number: 0524S.07T Fiscal Notes
Committee: Small Business and Industry
Last Action: 6/30/2017 - Signed by Governor Journal Page: S1906-1907
Title: SS#2 SCS SB 43 Calendar Position:
Effective Date: August 28, 2017
House Handler: McGaugh

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Current Bill Summary


SS#2/SCS/SB 43 - This act modifies and creates new provisions relating to unlawful discriminatory practices.

MOTIVATING FACTOR STANDARD

Currently, under the Missouri Human Rights Act (MHRA), a practice is unlawful when the protected classification is a contributing factor in the decision to discriminate. This act changes that standard to the motivating factor. The motivating factor is defined to mean that the employee's protected classification actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action. The person must further prove that such action was the direct proximate cause of the claimed damages.

EMPLOYERS AND EMPLOYMENT AGENCIES UNDER MHRA

Currently, persons acting in the interest of employers are considered employers under the MHRA and are each liable for discriminatory practices. This act modifies the definition of employer to exclude such individuals. The act similarly excludes the following from the definition of employment:

• 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;

• Private membership clubs; and

• Corporations and associations owned or operated by religious or sectarian organizations.

Under current law, any person acting in the interest of a person or agency that regularly undertakes to procure employees for an employer or to procure for employees opportunities to work for an employer is considered to be an employment agency. This act repeals that provision.

UNLAWFUL DISCRIMINATORY PRACTICES

This act provides that the entities subject to prohibitions on certain unlawful discriminatory practices are limited to employers, employment agencies, labor organizations, or places of public accommodations.

EXCLUSIVE REMEDY

The act provides that the MHRA, the Workers' Compensation chapter, and the general employment law chapter shall be the exclusive remedy for any and all claims for injury or damages arising out of the employment relationship.

FILING OF COMPLAINTS WITH THE COMMISSION

Current law provides that any person claiming to be aggrieved by an unlawful discriminatory practice may make, sign, and file with the Missouri Human Rights Commission a verified complaint in writing. This act stipulates that such persons are required to file such a complaint as a precedent to filing a civil action under the MHRA. Furthermore, the failure to timely file a complaint with the Commission shall deprive the commission of jurisdiction to investigate the complaint. Complainants shall file such complaint with the Commission within 180 days of the alleged act of discrimination. Failure to timely file may be raised as a complete defense by a respondent or defendant at any time.

Current law provides that the Commission shall issue to aggrieved persons a "right to sue" letter in the following circumstances:

• If the person has filed a complaint with the Commission and the person requests such a letter in writing; or

• If after 180 days from filing a complaint with the Commission, the Commission has not completed its administrative process and the person has requested such a letter in writing.

This act stipulates that the Commission may not at any other time or for any other reason issue a letter indicating a complainant's right to bring a civil action.

JUDICIAL INTERPRETATION

The act abrogates McBryde v. Ritenour School District. Furthermore, it shall be a presumption that for a fair presentation of a case, a jury shall be given an instruction expressing the "business judgment rule."

The act recommends the use of the burden shifting analysis used by the U.S. Supreme Court in McDonnell-Douglas Corp. v. Green when it is not a case involving direct evidence of discrimination.

The act expressly abrogates all existing Missouri approved jury instructions concerning the MHRA.

RELIEF AVAILABLE UNDER MHRA CASES

Parties to a discrimination case under the MHRA have a right to a jury trial.

Damages awarded for employment cases under the MHRA 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

• $500,000 for employers with more than 500 employees.

WHISTLEBLOWER'S PROTECTION ACT

The act creates the "Whistleblower's Protection Act." Employers are barred from discharging the following persons:

• an employee of an employer who reports an unlawful act of the employer;

• an employee of an employer who reports to an employer serious misconduct of the employer that violates a clear mandate of public policy as articulated in a constitutional provision, statute, or regulation promulgated under statute;

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

• an employee of an employer who engages in conduct otherwise protected by statute or regulation where the statute or regulation does not provide for a private right of action.

RELIEF AVAILABLE UNDER WHISTLEBLOWER CASES

Employees have a private right of action for actual but not punitive damages under the act unless another private right of action for damages exists under another state or federal law. Parties to an action under this provision may demand a jury trial. Remedies allowed are backpay, reimbursement of medical bills incurred in treatment of mental anguish, and double those amounts as liquidated damages if it is proven by clear and convincing evidence that the employer's conduct was outrageous because of the employer's evil motive or reckless indifference to the rights of others. The liquidated damages shall be treated as punitive damages and backpay and reimbursement shall be treated as compensatory damages in a bifurcated trial if requested by a party. Attorney's fees may be recovered upon a showing that the case was without foundation.

This act contains a severability clause.

This act is similar to HB 550 (2017), HB 552 (2017), SB 745 (2016), SCS/HCS/HB 1019 (2015), SB 36 (2015), SB 490 (2014), SB 703 (2014), HB 319 (2013), SB 353 (2013), HCS/HB 320 (2013) SS/SCS/SB 592 (2012), HB 1219 (2012), HB 2015 (2011), SB 188 (2011) that was vetoed by the Governor, HB 1488 (2010), SS/SB 852 (2010), HB 1488 (2010), HB 799 (2009), HB 227 (2009), SB 374 (2009), SB 1046 (2008), SB 168 (2007), and SCS/HCS/HB 1456 (2006).

SCOTT SVAGERA