Missouri Bill Would Make it Harder for Employees to Sue for Discrimination

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Missouri lawmakers are considering a bill that would raise the standard for workers to sue their employers for discrimination, a proposal that’s drawn support from pro-business groups and backlash from advocacy groups who say the change will allow intolerance to go unpunished.

Senate Democrats slammed the bill during debate before Republican sponsor Sen. Gary Romine, whose rent-to-own furniture company currently is being sued for racial discrimination and retaliation, agreed to narrow the scope of the measure.

Here’s a breakdown of the potential impact of the bill as it stands, which is awaiting a public committee hearing in the state House:

Proving Discrimination

Romine’s plan would require plaintiffs bringing discrimination lawsuits to prove that race, religion, sex or other protected status was the motivating factor for discrimination or termination, not just a contributing factor.

Romine and Missouri Chamber of Commerce and Industry lobbyist Brian Bunten have said that’s needed to cut back on frivolous lawsuits, although they did not provide an example of a lawsuit that they thought was extreme.

At issue is a 2007 court decision in an age and disability discrimination case that relied on jury instructions using the current contributing-factor standard. While state law bans discrimination “because of” or “based on” race, sex and status as a protected class member, the court ruling meant that plaintiffs only needed to prove that bias played a contributing role in harassment or firing.

“Contributing factor is such a low standard, it created an environment where it was too easy for any reason at all for someone to bring retaliation against an employer for wrongful termination and declare it some type of discrimination,” Romine said.

Bunten and Romine say businesses often settle out of court to avoid attorney fees and potentially bad publicity about alleged discrimination.

Opponents of the measure — who include Democrats, the state NAACP and trial attorneys — say enacting it will make it more challenging for victims of harassment and discrimination to take wrongdoers to court.

St. Louis attorney Jon Berns said it would have stopped Festus, Missouri, resident Phyllis Delaney from suing when she was fired three days before a scheduled surgery to donate a kidney to her brother that required her to take four weeks off work. In the lawsuit, she claimed her brother’s disability was a “contributing factor” in her firing.

The legislation also grants protections for whistleblowers in private businesses but would allow state agencies, including public colleges and universities and K-12 schools, to fire employees who alert authorities of illegal conduct without worry of lawsuits.

Limiting Damages

The bill would limit damages sought under the Missouri Human Rights Act on a scale depending on the size of a business. The smallest employers with between five and 100 employees wouldn’t pay more than $50,000. Companies with more than 500 employees wouldn’t face more than $500,000 in damages.

The change would have meant limits on how much juries could have awarded in discrimination and harassment lawsuits filed against the state Department of Corrections. Expensive legal payments from the department have drawn scrutiny since the Kansas City alternative weekly paper The Pitch reported the state spent more than $7.5 million on related settlements and judgments between 2012 and 2016.

“The fact that we’ve had a significant number of large jury verdicts against the Department of Corrections is the only reason that these issues have been brought to light,” said Berns, who has represented plaintiffs suing the Corrections Department. He also argued that people might not go to the trouble of taking a case to court if damages are limited.

Bunten said the goal of damage caps is to mirror federal law.