Missouri Senate

Introduced

MOTIVATING FACTOR STANDARD

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 and age discrimination cases have the burden of proving these standards.

EMPLOYERS 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 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.

JUDICIAL INTERPRETATION

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 further abrogates the cases of Daugherty v. City of Maryland Heights, Korando v. Mallinckrodt, Inc., Lomax v. Daimler-Chrylser, and Francin v. Mosby, Inc. Missouri Approved Jury Instructions 31.24, 31.25, and 31.27 are expressly abrogated.

The act recommends two methods to the courts for analyzing employment discrimination cases as a basis for granting summary judgment: the mixed motive method used by the U.S. Supreme Court in Price Waterhouse v. Hopkins, and the burden shifting analysis used by the U.S. Supreme Court in McDonnell-Douglas Corp. v. Green.

RELIEF AVAILABLE UNDER MHRA CASES

Parties to a discrimination case under the MHRA may demand 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 $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.

WHISTLEBLOWER’S PROTECTION ACT

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

• a person who reports an unlawful act of the employer or its agent;

• 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, or regulation promulgated under statute;

• 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 where the statute or regulation does not provide for a private right of action.

The employee's protected conduct shall be a motivating factor in the employer's discharge or retaliation.

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.

This act contains a severability clause.

This act is substantially similar to SB 745 (2016), SCS/HCS/HB 1019 (2015), SB 36 (2015) and similar to 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