Michael S. Powers

Michael S. Powers Associate

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Governor Greitens Changes Missouri Employment Law Landscape by Signing Discrimination Bill into Law

On Friday June 30, 2017, Governor Eric Greitens signed into law Missouri Senate Bill 43, making several key changes to Missouri’s discrimination laws.  Governor Greitens signed the bill after what he described as extensive consultation with both proponents and opponents of the bill in the period leading up to its signing.  Prior to the signing of the new law, Missouri was seen as one of the easiest places in the nation for an employee to sue an employer for discrimination.  That dubious distinction can be traced back to a 2007 ruling by the Missouri Supreme Court, in which the Court applied an extremely low, extremely plaintiff-friendly standard of proof to claims arising under the Missouri Human Rights Act (“MHRA”).  Under that “contributory factor” standard, a plaintiff who sued his or her employer for illegal discrimination or harassment only had to prove his or her membership in a protected group contributed to the employer’s adverse employment action.  It is fair to say that no other state in the country had a legal standard of proof as low as Missouri.  Prior to 2007, Missouri courts had utilized a standard and an analytical method modeled on that used by federal courts and the vast majority of states.

Under the contributory factor standard a jury would essentially only need to decide if the alleged illegal motivation played any part at all in an adverse employment action in order to find for the plaintiff. Because the MHRA also allows a prevailing party to receive attorney’s fees, and, in some cases, punitive damages, even a very minor verdict for a plaintiff could be hugely damaging for a defendant.  The new law moves Missouri back into line with the federal standard and other states by restoring the burden-shifting model that originated in the United States Supreme Court case of McDonnell Douglas v. Green in 1973.  This model provides a robust analytical framework through which courts and jurors can approach and resolve allegations of discrimination.

The McDonnell-Douglas burden-shifting framework requires that a plaintiff alleging discrimination under federal law to first prove an initial case by establishing certain threshold matters.  If the plaintiff meets that initial burden, the burden then shifts to the employer to state a legitimate, non-discriminatory reason for the actions it took.  If it is able to do so, the burden returns to the plaintiff to show that the reasons given by the employer were untrue, and were actually a pretext for illegal discrimination.  This method requires each party to present a sound legal position to meet its burden, unlike the method currently used in Missouri which frequently allowed a plaintiff to prevail with even the most illusory and unsupported allegations of discrimination.

One of the most significant changes in the law is that Missouri courts will have greater flexibility in granting summary judgment, thereby weeding out frivolous claims without the expense and difficulty of a trial. During the decade-long run of the contributory factor standard, it was exceedingly rare for a Missouri court to grant summary judgment on an MHRA claim as the standard of proof was simply so low that Missouri courts would submit almost every claim to a jury, even where the claim was obviously poor.  This led to an atmosphere of rampant litigiousness in which plaintiffs demanded substantial settlements even for extremely tenuous claims.  If the defendant was unwilling to pay what was asked, it would have to take its chances in a system where even a very small verdict could have six- or seven-figure consequences.

SB 43 also makes a number of other changes to Missouri’s discrimination laws.  Previously, Missouri was one of the few locations in which an individual could sue a manager or supervisor in his or her individual capacity for alleged discrimination.  This meant an individual might find him or herself exposed to legal fees and damages simply for acting in the ordinary course of business.  This also meant that a plaintiff could defeat the federal government’s diversity jurisdiction, even when such rules otherwise applied, by suing a Missouri-resident supervisor – whether that individual had truly been involved in the allegations or not.  SB 43 removes individual liability for claims under the MHRA.  The new law also imposes damage caps for claims under the MHRA, and makes a number of procedural changes, including simplifying how an employer may challenge the timeliness of an employee’s discrimination claim.  In addition, the new law codifies Missouri’s common law claim of public policy discharge and eliminates the contributory factor standard for such claims.  .  A separate but similar bill, signed on Wednesday July 5th, eliminates the contributory factor standard for workers’ compensation retaliation claims and makes other changes to Missouri’s workers compensation law.

Missouri’s business community has largely applauded this change, and has pushed for such a measure for years.  Daniel Mehan, President and CEO of the Missouri Chamber of Commerce and Industry, released a statement saying “[t]his new law ends a decade-long period where Missouri was one of the easiest places in the nation to sue a company and win.”   Mr. Mehan described the prior “abnormally low” standard as a factor which made Missouri inhospitable to business, and hurt the state’s ability to attract business.  There is every reason to believe that this new law will have exactly the desired effect in limiting frivolous litigation and making Missouri a better place to do business.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including defense of discrimination claims, for almost sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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