The Missouri Court of Appeals, Eastern District recently handed employers yet another punch. The court held that a jury should decide whether an employer demonstrated reasonable care in seeking disciplinary information regarding a supervisor’s misconduct in his previous employment. Herndon v. The City of Manchester, No. ED91175, Missouri Court of Appeals (March 24, 2009).

Factual Background

Lori Herndon was employed as a police officer by the Manchester Police Department. Between February and June 2004, Sergeant Willie Epps allegedly harassed Herndon while acting as her relief supervisor. Herndon subsequently sued the City under the Missouri Human Rights Act (MHRA), alleging that she was subjected to inappropriate conduct of a sexual nature by Epps.

The City moved to dismiss the case on the basis of the affirmative defense established by the U.S. Supreme Court in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton and adopted by the Missouri Court of Appeals in Cooper v. Albacore Holdings, Inc. Specifically, the City argued that it should not be held liable for Epps’ conduct because it had taken reasonable care to prevent harassment by implementing an anti-harassment policy and had remedied the harassment by promptly investigating Herndon’s complaint and terminating Epps.

In response to the City’s motion for summary judgment, Herndon introduced evidence that 15 years prior to the City hiring Epps, he had been terminated by a prior employer as a result of a citizen complaint of sexual misconduct. Herndon argued that in order for the City to demonstrate its efforts to prevent harassment were reasonable, it had to inquire into Epps’ prior disciplinary record. The City countered, arguing it had requested documentation of Epps’ prior employment (including his disciplinary record) but his former employer only provided Epps’ identifying information and dates of employment. Further, the City argued that the former employer, like most employers, was not likely to disclose that information for fear of a libel claim by Epps.

Legal Analysis

The Circuit Court of St. Louis County agreed with the City and dismissed the case but the Court of Appeals for the Eastern District of Missouri reversed. Despite the fact that the prior bad acts of Epps had occurred more than 15 years prior to the City hiring him and were acts perpetrated against a citizen and not a co-worker, the Court of Appeals held the acts were not too remote in time or irrelevant. Moreover, the Court of Appeals held that while a jury may agree with the City that it had acted reasonably, in the court’s opinion, the City should have taken additional steps to acquire disciplinary information after receiving only limited information from Epps’ prior employer.

Practical Impact

This is an unfortunate addition to an ever-growing line of Missouri Supreme Court and Court of Appeals cases issued against employers, which have given workers the right to jury trials, reduced burdens of proof, permitted suits against individuals and upheld substantial punitive damages awards. Gregg Lemley, co-managing shareholder of Ogletree Deakins’ St. Louis office, predicts decisions like these will force the legislature to reign in the courts for fear that these types of cases could cause businesses to shy away from Missouri. “While this a disappointing decision for employers in the state of Missouri, if there is a silver lining here it’s that the further the judiciary pushes the boundaries of the MHRA beyond the breaking point, the more likely the legislature is to finally take action to protect Missouri employers.”

Lemley continued: “While most employers will be reluctant to provide such information regarding former employees, the Missouri Court of Appeals specifically held that more is required of prospective employers than simply making a single reference request with an unsatisfactory or incomplete response. Consequently, under Herndon, employers must take greater steps in conducting background investigations and acting upon any information suggesting the employee previously engaged in acts of harassment. In addition to verbal reference checks, Missouri employers also should consider making written requests pursuant to Mo. Rev. Stat. § 290.152, which gives responding employers immunity from civil liability when they provide truthful responses in writing as to the nature, character and duration of the employee’s service and the reasons for the termination of his or her employment. Moreover, it now appears imperative that an employer follow up in writing for additional information any time they receive a response to an employment reference check that provides only basic information on positions and dates of employment. Finally, all employment reference requests should now specifically include requests for information on allegations of harassment against the employee.”