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Expect Changes in 2017 to Employment Related Causes of Action in Missouri

By Christopher L. Johnson

Following the 2016 election of Missouri’s Republican governor, Eric Greitens, the majority Republican legislature wasted no time reviving amendments to the Missouri Human Rights Act (MHRA) that were vetoed by then Governor Nixon in 2011. 

One of three separate bills filed this year, each identical to the bill passed and vetoed in 2011 (SB43, HB550, and HB552), is expected to pass and be signed into law by Gov. Greitens this year. The legislation generally modifies the MHRA causes of action to mirror those under Title VII. More specifically, the legislation amends the MHRA and key Missouri Supreme Court rulings as follows:

  • Changes the burden of proof from the current “contributing factor” to a higher burden that will require the plaintiff to establish that the claimed act of unlawful bias was a “motivating factor” in any challenged employment decision. 
  • Imposes the following caps on damages for a prevailing plaintiff:
    • $50,000 for employers with 6-99 employees; 
    • $100,000 for employers with 100-200 employees; 
    • $200,000 for employers with 201-500 employees; 
    • $300,000 for employers with more than 500 employees. 
    • Excludes supervisors and others from individual liability by expressly removing them from the definition of “employer.” 
  • Requires Missouri courts to “rely heavily upon judicial interpretations” of Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.
  • If requested, the court must give a business judgment instruction to the jury which states that, when considering the employer’s reason for the challenged employment decision, it is not the jury’s role to second-guess a business decision by the employer so long as it was not made for a discriminatory reason.
  • Encourages Missouri courts to utilize the summary judgment mechanism to remove “factually insubstantial cases [] from crowded dockets.” When considering summary judgment motions, courts are to analyze the cases following the U.S. Supreme Court’s shifting burden framework used in Title VII cases.
  • Precludes the award of punitive damages against the state or political subdivisions of the state.

The pending legislation also contains a section to be known as the “Whistleblower’s Protection Act,” which has the stated purpose of “codify[ing] the existing common law exceptions to the at-will employment doctrine and limit[ing] their future expansion by the courts.” This section, along with the discrimination provisions of the MHRA, provide the sole remedies for any and all unlawful employment practices articulated in their respective chapters of the Missouri Revised Statutes and “abrogates any common law causes of action to the contrary.”

Should the pending legislation become law in August 2017 as expected, it will be more difficult for plaintiffs to prove their claims of discrimination and retaliation, and severely limit their remedies.