Today, the Missouri House of Representatives passed Senate Bill 43, which makes significant changes to the Missouri Human Rights Act (“MHRA”), Missouri’s fair employment practices law. Having now passed both Chambers, Senate Bill 43 now goes to Governor Greitens desk for approval. Senate Bill 43 makes a number of important changes to the MHRA:

Burden of Proof Changed to Motivating Factor

The burden of proof on claims under the MHRA is changed to “motivating factor.” In 2003, the Missouri Supreme Court held there was a right to a jury trial under the MHRA. In 2005, an advisory committee on Missouri’s jury instructions considered the need for a new instruction for claims under the MHRA, and ultimately recommended that the burden of proof for claims under the MHRA be “contributing factor.” The Supreme Court adopted that recommendation, and in Daughtery v. City of Maryland Heights, 213 S.W.3d 814 (Mo. banc 2007) held that this standard must be applied to MHRA discrimination claims, and in Hill v. Ford Motor Co., 277 S.W3d 659 (Mo. banc 2009) held that this standard must be applied to MHRA retaliation claims. Since then, there have been numerous efforts in the Missouri Legislature to undo those decisions requiring use of the contributing factor standard. Twice legislation was passed by both chambers, but Governor Nixon vetoed those bills in 2011 and 2012.

Under Senate Bill 43, where the MHRA says it is unlawful to discriminate “because of” a protected characteristic, “because of” means “as it relates to the adverse decision or action, the protected criterion was the motivating factor,” and “motivating factor” means “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.” Senate Bill 43 explicitly overturns Daughtery, its progeny and the current Missouri Approved Instructions for MHRA claims. This is a significant development. Since Daughtery, trial courts in Missouri have been reluctant to grant summary judgment in MHRA cases noting the low burden of the contributing factor standard. This new standard should be helpful for employers to argue for summary judgment on cases with little merit, and to argue to juries that unlawful discrimination must have been the motivating factor, or, in other words, that it had a determinative influence on the adverse employment action.

Elimination of Individual Liability

In Hill v. Ford Motor Co., the Missouri Supreme Court held for the first time that individual supervisors and human resources professional could be sued under the MHRA. Senate Bill 43 eliminates individual liability.

Caps on Damages

Senate Bill 43 places caps on damages similar to those under Title VII of the federal Civil Rights Act, the only difference being the highest cap, which will be $500,000 for employers with 500 or more employees.

Whistleblower Protection Act

Senate Bill 43 codifies and clarifies the cause of action under Missouri law for protection of whistleblowers, with limits on damages and remedies, and exceptions to claims for whistleblowing.

The Business Judgment Rule

Senate Bill 43 abrogates the case of McBryde v. Ritenour School District, 207 S.W.3d 162 (Mo.App. 2006), which held that the business judgment instruction should not be given. If Senate Bill 43 becomes law, employers can again seek to have the jury instructed that they are not to return a verdict for the plaintiff just because the jury might disagree with the employer’s decision or believe it to be harsh or unreasonable.

In Farrow v. St. Francis Medical Center, 407 S.W.3d 579 (Mo. Aug. 2013), the Missouri Supreme Court held that an employer could not challenge the employee’s failure to timely file a charge within 180 days with the Missouri Commission on Human Rights because the employer: (1) failed to raise the timeliness issue while the complaint was pending before the MCHR; and (2) failed to seek judicial review by petitioning for a “writ of mandamus” with the court within 30 days of the MCHR’s issuance of the notice of right to sue. Since Farrow, Missouri employers have been forced to file expensive writ litigation in order to not waive the issue, in some case even where the employee has not filed suit. The employer has 30 days to file a writ, but the employee has 90 days to file suit. The employer is required to file for a writ of mandamus, before it knows whether the aggrieved employee intends to file suit. Additionally, since Farrow, the employer has been forced to file two position statements (one with the EEOC and one with the MCHR) because the failure to raise timeliness with the MCHR can waive the defense.

Senate Bill 43 fixes the odd and expensive machinations an employer must go through with MCHR claims. Under Senate Bill 43, the failure to timely file a complaint with the commission shall deprive the commission of jurisdiction to investigate the complaint. The commission shall make a determination as to its jurisdiction with respect to all complaints. Notwithstanding any other provision of this chapter to the contrary, if a complaint is not filed with the commission within one hundred eighty days of the alleged act of discrimination, the commission shall lack jurisdiction to take any action on such a complaint other than to dismiss the complaint for lack of jurisdiction. The failure to timely file a complaint with the commission may be raised as a complete defense by a respondent or defendant at any time, either during the administrative proceedings before the commission, or in subsequent litigation, regardless of whether the commission has issued the person claiming to be aggrieved a letter indicating his or her right to bring a civil action and regardless of whether the employer asserted the defense before the commission.

Upon the Governor’s signature these changes will become law on August 28, 2017

Click here to view bill.