The Missouri Supreme Court has completed a clean sweep of the employment law arena by imposing the minimalist "contributing factor" causation standard on workers' compensation retaliation cases. Previously, in a series of cases beginning in 2007, the Court had ruled that this standard – which does not require that the discriminatory intent be the primary or even a substantial motivation for the adverse job action – should govern employment discrimination and retaliation and public policy (whistleblowing/wrongful discharge) cases. In the current ruling the Court expressly overruled two of its long-standing precedents which had required the plaintiff to prove that anti-workers’ compensation bias was the exclusive reason for the discharge or other adverse job action. The case is Templemire v. W & M Welding, Inc., No. SC93132 (Mo. en banc April 25, 2014)
The prohibition of discrimination against an employee for exercising rights under the Missouri workers' compensation program is based on a statute enacted in 1925 as part of the original workers' compensation law. It provides that "No employer or agent shall discharge or in any way discriminate against any employee for exercising any of his rights under" the worker's compensation law. In two cases it decided in 1984 and 1998, the Missouri Supreme Court ruled that this statute required the employee to prove that the exclusive reason for the adverse job action was because the employee exercised his rights to workers' compensation benefits. Briefly stated, the Court in Templemire determined that it had incorrectly decided these prior cases because there was nothing in the statutory language which required that the anti-workers’ compensation element be the only reason for the adverse job action.
The Templemire decision continues the trend of lessening the amount of proof employees need to present in employment cases which began with the Court’s decision in Daugherty v. City of Maryland Heights, 231 S.W.3d 814 (Mo. en banc 2007). In Daugherty, the Court held that there is a violation of the Missouri Human Rights Act (MHRA) if discriminatory intent is a mere "contributing factor however slight" in a discharge decision or other job action. This light burden of proof means the employee can recover even if discriminatory intent was, for example, 10% of the reason for the job action. The Daugherty standard is commonly believed to be the easiest burden of proof for an employee in the entire country. The Court in Daugherty reached this decision in spite of the language of the MHRA that prohibits discrimination only where the job action was "because of" a protected characteristic such as age. In subsequent years the Court followed Daugherty with cases imposing the "contributing factor" standard in retaliation cases and in public policy discharge cases. With it now being applied to work comp retaliation cases, it governs all common forms of employee versus employer litigation.
The US Supreme Court, incidentally, has recently held that "because of" as used in Title VII, the principal federal anti- discrimination statute, means that the discriminatory intent must be the predominant reason for the adverse job action. Univ. of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013). This is what in the law is called "but for" causation, that is, the job action would not have occurred "but for" the improper bias; in other words, it was at least 51% of the decision. The Court did not have to look much further than the dictionary to reach this conclusion. Thus, all of Missouri's employment cases will now be decided under a legal interpretation at odds with that of the United States Supreme Court. Because the Missouri Supreme Court cases arise under Missouri law, however, the Missouri Supreme Court is free to decide them as it sees fit.
The decision in Templemire was controversial within the Court, with two of the seven judges dissenting. Their dissent was based on the fact the Court was overruling its past decisions, which in the dissent's opinion were settled law, regardless of whether the original cases had been correctly decided. This doctrine of stare decisis – that a court should usually adhere to past decisions - has proved to be no barrier to the Missouri Supreme Court in recent years. Notably, its landmark decision in Daugherty was itself an overruling of its prior case of Mid-State Oil Co. v. Mo. Comm'n on Human Rights, 679 S.W.2d 842 (Mo. en banc 1984).
There are several inevitable consequences which will flow from Templemire. First, under Missouri law it will become as scarce to obtain summary judgment - dismissal by the court before trial - in workers’ compensation retaliation cases as it now is in employment discrimination and retaliation cases. Accordingly, employers will be faced with the choice of bearing the cost of the lawsuit all the way through trial, or settling. This dilemma will result in, as it has in discrimination cases, some employers deciding to pay settlements for marginal or even less meritorious claims. Second, it will make even more difficult the employer's decision whether to discharge an employee who suffered an on-the-job injury and who has been unable or unwilling to return to full duty after a reasonable period of time. Thereby, it will contribute to retention of unproductive employees and unnecessary costs.
After Templemire, employers can expect a significant uptick in lawsuits claiming some form of retaliation because the employee exercised rights under the workers’ compensation law. Previously, the "exclusive cause" standard tended to discourage marginal cases. It now becomes more important than ever for employers to carefully review with counsel any adverse action contemplated in regard to this class of employees.