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Senate Bill 43: Raising the Bar on Discrimination

Senate Bill 43: Raising the Bar on Discrimination

By Brian Stachowski

Introduction

What is the legal standard for proving workplace or housing discrimination under the Missouri Human Rights Act? Who can a plaintiff sue when they feel they’ve been discriminated against? What amount can a successful plaintiff recover in a discrimination action? Missouri lawmakers answered, or rather re-answered, these questions with Senate Bill 43.

A Higher Bar

Prior to August 28 of this year, a plaintiff had to prove that the protected classification was merely a contributing factor in the adverse employment action.[1] With Governor Greitens’ signature, Missouri has adopted the more rigorous motivating factor standard in regard to proving discrimination. This portion of the bill is not only the most controversial, but also the most consequential.

In Daugherty v. City of Md. Heights, the Supreme Court of Missouri based the contributing factor standard off of a jury instruction.[2] The pertinent language of the jury instruction reads: “Your verdict must be for plaintiff if you believe: . . . Second, (here insert one or more of the protected classifications supported by the evidence such as race, color, religion, national origin, sex, ancestry, age, or disability) was a contributing factor in such (here, repeat alleged discriminatory act, such as ‘failure to hire,’ ‘discharge,’ etc.).”[3] The Court in Daugherty found that the language used in MAI 31.24 is consistent with the plain meaning of the Missouri Human Rights Act.[4] The Court reasoned that the standard was appropriate because the standard for stating a claim of discrimination could not be a higher standard than the instruction submitted to the jury.[5] Ultimately, the court decided that a plaintiff’s claim is proper if he or she raises a genuine issue of material fact as to whether the discrimination was a contributing factor.[6]

Although the new law has drummed up much controversy, in some ways it is a return to form. Prior to the decision in Daughtery, Missouri courts considered, “whether the employer’s conduct challenged by the plaintiff was motivated by an invidious purpose or whether it was based on a legitimate and rational consideration.”[7] The new bill changed phrasing throughout the relevant statutes in order to alter the standard.[8] One of the ways in which they did this was by changing “on the bases of” to “because of” throughout the Bill.[9] The Senate then defined “because” or “because of” to mean, “as it relates to the adverse decision or action, the protected criterion was the motivating factor.”[10] Moreover, the Senate defined “motivating factor” as, “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.”[11]

The Boss Is Off Limits

A key question for every plaintiff in every lawsuit is “who can I sue?” Prior to S.B. 43, an aggrieved employee could sue not only their employer, but any person acting in the interest of the employer, such as a manager.[12] Although the practical ramifications of this are less drastic than the raising of the standard, they are nonetheless impactful. In most discrimination cases a plaintiff is more interested in suing the employer rather than a representative for the simple reason that it is much more likely that an employer or business has the means, or insurance coverage, to pay out hefty damages awarded by a jury, as opposed to a member of middle management. However, this is not the only implication. This change to the statute essentially gives full immunity to the employer’s representative. It is not hard to imagine that a representative of an employer may be less likely to cooperate with an employee when given statutory immunity to any discriminatory cause of action.

Show Me the Money

Another significant change that the Senate brought about in S.B. 43 is the economic cap on damages. It isn’t a strictly flat cap, but rather a cap based on the number of people the employer employs.[13] If an employer has between five and one hundred employees, the cap is fifty thousand dollars.[14] If the employer has between one hundred and two hundred employees, the cap is one hundred thousand dollars.[15] The cap is two hundred thousand dollars if the employer has between two hundred and five hundred employees.[16] Finally, if the employer has more than five hundred employees the cap it set at five hundred thousand dollars.[17]

Although these amounts are far from nominal, a damages cap most certainly benefits the employer by significantly limiting their liability. Under this Bill, regardless of the blatancy or severity of the discrimination, each plaintiff is limited to the damages outlined above. However, it is worth noting that these damage caps are in addition to actual back pay and interest on back pay.[18]

Implications

It is easy to see how these changes would be met with jubilee by employers, and equally met with disdain by those who feel they have been discriminated against. The policy behind the Bill was clearly to shield businesses from tenuous law suits with potentially high damages. Greitens, and other proponents of the Bill, argue that the raised standard simply brings Missouri in line with other states and Title VII.[19] Daniel Mehan, President and CEO of the Missouri Chamber of Commerce, states, “this new law ends a decade-long period where Missouri was one of the easiest places in the nation to sue a company and win.”[20]

In contrast, dissidents argue that the new Bill has set Missouri back in time by eliminating remedies for civil rights violations. House Minority Leader Gail McCann Beatty said that Greitens has relegated minorities to the status of second class citizens.[21] Moreover, she went so far as to harken back to times when businesses could post “minorities need not apply” signs on their door.[22] Opponents have also expressed worries that employers who want to engage in illegal workplace discrimination will have no fear of being held accountable.[23] Ultimately, these bold statements will hold little water if the practices are truly in line with federal standards as Governor Greitens argues.

Conclusion

The lasting implications of this Bill may be unknown, but the immediate response has been far reaching. After Governor Greitens signed the bill on June 30, 2017,[24] the NAACP issued its first ever state-wide travel advisory.[25] Although the NAACP cited other issues and statistics related to law enforcement, they specifically cite S.B. 43 as their own motivating factor.[26] The NAACP compared the Bill to the Jim Crow era, and they surmise that the Bill legalizes individual discrimination and harassment within the state of Missouri.[27] The University of Missouri has reportedly supported the Bill, arguing it aligns the state with the 38 other states that currently mirror federal standards.[28] Proponents and opponents of S.B. 43 have come to radically different conclusions on its impact. Ultimately, the courts will have to decide the Bill’s limits and constitutionality.

 Brian Stachowski*
Edited by Luke Jackson

Footnotes

[1] Daughtery v. City of Md. Heights, 231 S.W.3d 814, 820 (Mo. 2007).
[2] Id.
[3] MAI 31.24 (6th Ed. Supp. 2007).
[4] 231 S.W.3d at 820.
[5] Id.
[6] Id. 
[7] Midstate Oil Co. v. Moi Com. On Human Rights, 679 S.W.2d 842 (Mo. 1984).
[8] 2017 Bill Text MO S.B. 43, 2017.
[9] Id.
[10] Id.
[11] Id.
[12] 2017 Bill Text MO S.B. 43, 2017.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] S.B. 43.
[18] Id.
[19] Doug Moore, NAACP travel advisory hurting St. Louis business, STL Today (Aug. 2017), available at: http://www.stltoday.com/news/local/metro/naacp-travel-advisory-hurting-st-louis-business-head-of-city/article_476641df-ed44-502a-8281-e8ac7373ce6a.html.
[20] Id.
[21] Id.
[22] Id.
[23] Id. 
[24] Summer Ballentine, Missouri Gov. Greitens Signs Discrimination Bill, U.S. News (June 2017), available at: https://www.usnews.com/news/best-states/missouri/articles/2017-06-30/missouri-gov-greitens-signs-discrimination-bill.
[25] http://www.naacp.org/latest/travel-advisory-state-missouri/.
[26] Id.
[27] Id.
[28] http://www.stltoday.com/news/local/metro/naacp-travel-advisory-hurting-st-louis-business-head-of-city/article_476641df-ed44-502a-8281-e8ac7373ce6a.html.

*Saint Louis University School of Law