Employer Relief in Missouri: Amendments Headed to the Governor

By Denise K. Drake

On May 8, 2017, the Missouri House gave final approval to a much anticipated, heavily debated, and still highly controversial bill that will significantly modify the law applicable to “unlawful employment practices” in the state. Governor Eric Greitens has until July 14, 2017, to sign or veto the bill. So long as he does not veto, the bill will become law on August 28, 2017. 

Among other things, if the bill becomes law, employers may expect:

More stringent proof in discrimination cases: The amendments require employees who allege employment discrimination (or retaliation) under the Missouri Human Rights Act (MHRA) to prove unlawful discrimination or retaliation was “the motivating factor” in a complained-about adverse employment action. To qualify as “the motivating factor,” unlawful discrimination or retaliation must have “actually played a role” in and “had a determinative influence” on the adverse action. This change is a significant departure from the current requirement that plaintiffs need merely prove unlawful discrimination or retaliation “contributed” to an employer’s decision.

No individual liability: Individual supervisors and other employees will no longer be personally at risk for liability in a discrimination or retaliation case under the new law. 

A "Business Judgment Rule” jury instruction: Jurors sometimes want to substitute their judgment for an employer’s. The new law’s requirement that courts give jurors a “business judgment rule” instruction counters this tendency, mandating that jurors not return a verdict in favor of an employee simply because the jurors disagree with an employer’s judgment in making an employment decision or believe the employer’s decision was harsh or unreasonable. 

Reduced damage awards: The MHRA currently allows juries to award a plaintiff uncapped emotional distress damages and up to “five times the net judgment” in punitive damages. While a jury might award a moderate amount in damages to a plaintiff-employee, Missouri courts interpreted “net judgment” to include the frequently higher amount courts awarded in attorneys’ fees. The new law continues to allow employees to recover back pay, plus interest on back pay, but limits the calculation for future pecuniary losses, emotional distress, and punitive damages to:

  • $50,000 for employers with 6 to 100 employees;

  • $100,000 for employers with 101 to 200 employees;

  • $200,000 for employers with 201 to 500 employees; or

  • $500,000 for employers with 501 or more employees.

Codified whistleblower protections for employees: Codifying, in part, existing common law exceptions to the employment-at-will doctrine, the amendments create a “Whistleblower’s Protection Act,” which makes it unlawful for employers to fire certain employees who, for example, report their employer’s unlawful acts or serious misconduct or refuse to carry out illegal employer directives. The Act allows successful plaintiffs to recover only limited actual damages, plus an additional liquidated damages award equal to actual damages provided the plaintiff proves an employer’s conduct was outrageous. 

Finally, the bill specifically identifies the MHRA, Missouri Workers’ Compensation Law, and new Whistleblower’s Protection Act as the exclusive remedies for all claims of unlawful employment practices in Missouri, effectively stopping Missouri courts from creating new employment-related causes of action.