The Missouri Human Rights Act (MHRA) is the state of Missouri’s primary anti-discrimination statute. The MHRA codifies for the state many of the federal anti-discrimination provisions found in the Americans with Disabilities Act, Age Discrimination in Employment Act, and Title VII of the Civil Rights Act of 1964. On May 8, 2017, the Missouri House of Representatives passed Senate Bill 43 (SB 43). The bill, which significantly modifies the MHRA and also codifies and limits workplace “whistleblower” liability, is now on the desk of newly-elected Governor Eric Greitens, who is expected to sign the legislation. If signed, the new law would be effective August 28, 2017. We do anticipate litigation over how this new legislation will be applied by the judiciary to pending MHRA and whistleblower litigation.

If signed, the bill would end nearly a decade of what many believe has been a judicial overreach and would put the MHRA in line with federal law and the laws of most other states. The bill would make several important changes to the MHRA (and to whistleblower law) for employers doing business in Missouri.

The Missouri legislature has been active this term in making Missouri less hostile to business, with a right-to-work law already passed and signed into law by the governor and other workplace-related legislation on his desk.

MHRA Amendments

First, the bill would replace the judicially created “contributing factor” standard with a more rigorous “motivating factor” standard—a standard that is equivalent to that of federal law. SB 43 defines “motivating factor" to mean that “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.” [Emphasis added.]

Second, the bill would end judicially created individual or supervisory liability pursuant to which a plaintiff can sue a supervisor or manager in his or her personal capacity for alleged harassment, discrimination, or retaliation. SB 43 specifically excludes from the definition of “employer” any “individual employed by an employer.” This means supervisory, managerial, human resources, and other affected employees in Missouri would no longer face the prospect of being sued in their individual capacities in MHRA cases. This is perhaps most significant for out-of-state employers doing business in Missouri because plaintiffs’ attorneys would no longer be able to prevent such employers from establishing diversity jurisdiction and litigating MHRA cases in federal court, as expressly provided by federal law.

Third, the bill specifies damage caps for compensatory and punitive damages that are similar to the caps under federal law. Depending upon the size of the employer’s workforce, these caps range from back pay plus $50,000 to back pay plus $500,000.

Fourth, the bill would require state courts to utilize the summary judgment mechanism for purposes of determining whether cases should proceed to trial based on the evidence (or lack thereof); again, this is a mechanism that is available to employers under federal law and in most other states but was rendered practically extinct by the Missouri judiciary.

Fifth, the bill would require a trial judge to issue a “business judgment” instruction to the jury in every case filed under the MHRA. For example, the “business judgment” instruction currently required in Missouri federal court discrimination trials is as follows:

You may not return a verdict for the plaintiff just because you might disagree with the defendant’s decision or believe it to be harsh or unreasonable. Without such an instruction, plaintiffs have effectively argued for employer liability based on an argument that a decision was merely unfair or unreasonable. Now, the jury instructions would require an actual finding of some form of unlawful discrimination.

The bill would also abrogate certain other state court judicial decisions and jury instructions that have been hostile to employers.

Whistleblower Codification

The whistleblower codification is similar to the MHRA amendments in that a “motivating factor” standard is required for causation and supervisory/managerial liability is eliminated. Other key provisions of SB 43’s whistleblower codification include the following:

First, in addition to eliminating supervisory/managerial liability, under the bill, neither the state nor its political subdivisions could be sued on a whistleblower cause of action.

Second, remedies for successful whistleblower plaintiffs would be altered from the current possibilities, but not in the manner MHRA remedies are altered; instead, a successful plaintiff could recover back pay plus reimbursement of medical bills, and, if the employer’s conduct was outrageous, the plaintiff could recover double his or her back pay plus payment for his or her medical bills (but not punitive damages). Reinstatement would be unavailable to a successful plaintiff, but attorneys’ fees would be made available.

Third, the whistleblower retaliation cause of action would be codified by defining who is and who is not a “protected person.” Importantly, the legislature has specified that certain high-ranking employees cannot be whistleblower plaintiffs where their jobs are to report or give professional opinions on such misconduct internally.

Finally, SB 43 makes it clear that it would codify the exceptions to the at-will doctrine and tells the courts that future expansion of exceptions to the at-will doctrine would be prohibited.

Conclusion

In the end, the signing of SB 43 into law would mark the end of nearly a decade of unfavorable judicial decisions in MHRA and whistleblower cases. The changes that would be made to the MHRA by SB 43 would put the MHRA in line with federal and many other state’s anti-discrimination and anti-retaliation standards.