This summer, Missouri Gov. Eric Greitens signed into law Senate Bill 43, which substantially changes the way the Missouri Human Rights Act (MHRA) will be administered and interpreted. The MHRA’s core purpose is to prohibit employers from basing employment decisions on a person’s race, color, religion, national origin, sex, ancestry, age or disability, and it prohibits retaliation for engaging in protected activities covered under the act.
Employers and many conservative lawmakers have been pushing for an overhaul of the MHRA for the past decade as the act has received increasingly employee-friendly interpretation in the Missouri courts. Below are some of the major amendments to the law, which took effect Aug. 28, 2017.
The definition of employer and elimination of individual liability
The definition of “employer” is now more specific and is defined as “a person engaged in an industry affecting commerce who has six or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” This provides some clarity as to when small employers become covered by the act.
The definition of “employer” also now expressly excludes an individual employed by an employer. This means supervisors and other employees can no longer be held personally liable for acts taken “in the interest of the employer.” Only the entity is subject to liability for MHRA discrimination.
Motivating factor standard – increased burden of proof
To succeed at trial, an employee must now prove that his or her protected classification, such as age, race or disability, was “the motivating factor” in the adverse employment decision. 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.” This brings the MHRA back in line with most federal employment laws, whereas the previous contributing factor standard was a much lower burden of proof and led many courts to permit cases to go to trial rather than summarily disposing of them earlier in the litigation.
Caps on damages
Missouri employers can breathe a sigh of relief because there are now set damage caps under the MHRA. Before these amendments, the Missouri cap on punitive damages was floating, and if awarded, the plaintiff could recover the greater of $500,000 or five times the actual damages recovered (including back pay, emotional distress, front pay and attorneys' fees). Additionally, given the Missouri Supreme Court’s determination that attorneys’ fees should be included in the “actual damages” calculation, MHRA judgments have been quite large and virtually unrestrained, in contrast to the caps under federal employment laws. The new amendments change that.
Damages available under the MHRA are now capped on a sliding scale, depending on the number of employees of the defendant. Exclusive of attorneys’ fees, damages under the MHRA cannot exceed: (1) actual back pay and interest on back pay and (2) where the employer has:
- More than five employees, but fewer than 100 employees: $50,000
- More than 100 employees, but fewer than 200 employees: $100,000
- More than 200 employees, but fewer than 500 employees: $200,000
- More than 500 employees: $500,000
Charges of discrimination
Pursuant to the Missouri Supreme Court’s decision in Farrow v. Saint Francis Medical Center, 407 S.W.3d 579 (Mo. en banc 2013), employers were required to challenge a charge of discrimination’s timeliness with the Missouri Commission on Human Rights (MCHR) and then by action for judicial review. If the timeliness issue was not pursued in those two ways, the employer lost the ability to challenge a charge filed out of time. The MHRA amendments cure these procedural hurdles and greatly simplify the process.
An employer can now raise a timeliness defense at any point in the administrative process or during litigation. Whether a complainant files a timely charge is now a jurisdictional prerequisite to filing a lawsuit. If the complainant does not file a charge of discrimination within 180 days of the alleged discriminatory act, the MCHR lacks jurisdiction to investigate the charge or take any other action other than dismissal. Similarly, Missouri courts lack jurisdiction to hear a lawsuit if the charge was not timely filed. Additionally, the MCHR is now prohibited from issuing a Notice of Right to Sue unless it is requested by the charging party.
Whistleblower Protection Act
Missouri common law wrongful termination “whistleblower” actions are now codified in the MHRA as the Whistleblower Protection Act (WPA). This new WPA prohibits an employer from terminating an employee who is a “protected person,” defined as a person who:
- reports an employer’s unlawful act to the proper authorities;
- reports to the employer serious misconduct of the employer in violation of a clear mandate of public policy as articulated in a constitutional provision, statute or regulation promulgated under statute; or
- refuses to carry out an employer’s unlawful directive.
The WPA does not provide protection to a manager whose job is to report or provide a professional opinion on the conduct in question. It also does not protect employees who report alleged unlawful conduct to the person the employee claims acted unlawfully.
The WPA will also apply the “motivating factor” standard explained above. A successful complainant will be able to recover damages in the form of back pay and medical bills, liquidated damages (i.e., double damages), and attorneys’ fees.
The amendments make clear that the WPA, the MHRA and Missouri workers’ compensation laws provide the exclusive remedies for all claims of unlawful employment practices in Missouri.
Abrogation of certain decisions and other changes
In addition to abrogating Farrow with respect to timeliness issues, the amendments also abrogate other anti-employer judicial decisions. Missouri courts should now heavily rely on the judicial interpretations of Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. The amendments also require Missouri courts to give a jury instruction stating that the jury is not to second-guess a business decision made by the employer as long as it was made for a non-discriminatory reason, if such an instruction is requested by the employer. Finally, the amendments encourage Missouri courts to summarily dispose of cases that lack sufficient facts before trial and apply the U.S. Supreme Court’s burden shifting framework used in Title VII cases.
These changes should make employment litigation a less desirable avenue for disgruntled employees and provide a clearer path for litigation of legitimate claims. However, as with any new legislation, there are questions about how these changes will be interpreted and applied by the courts. We will closely monitor new MHRA cases and expect there will be some growing pains.