Missouri Senate

Senate Committee Substitute

BUT-FOR CAUSATION 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 such that an adverse decision or action would not have been made but for the employee's status as a protected person. 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 and operated by religious or sectarian groups.

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.

Current law provides that it is an unlawful discriminatory practice for the state or any political subdivision of this state to discriminate on the basis of race, color, religion, national origin, sex, ancestry, age, as it relates to employment, disability, or familial status as it relates to housing. This act repeals that provision.

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 shall 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 if:

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

• 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 directs the courts to use the definitions and burdens of proof standards set forth under this act. Courts shall additionally rely 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, to the extent that those cases are not inconsistent with Missouri law.

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 Missouri Human Rights Act.

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 $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 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.

This act contains a severability clause.

This act is similar to 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