Missouri Governor Greitens Signs Bill Amending MHRA, Bringing State Law More Into Line With Federal Law

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

On June 30, 2017, Governor Grietens signed a bill which makes sweeping reforms to the Missouri Human Rights Act (MHRA). The MHRA is the state of Missouri’s primary anti-discrimination statute. The MHRA codifies for the state many of the federal anti-discrimination provisions found in the Americans with Disabilities Act, Age Discrimination in Employment Act, and Title VII of the Civil Rights Act of 1964. The new law takes effect on August 28, 2017.

Governor Greitens’s signing of this bill marks the end of nearly a decade of what many believe has been a judicial overreach and levels the playing field between employers and employees. The bill makes several important changes to the MHRA (and to whistleblower law) for employers doing business in Missouri. Upon signing the new law, Governor Greitens stated he “met with passionate advocates on both sides of SB 43. I respect all of them. I've listened to every side. I believe we need to bring Missouri’s standards in line with 38 other states and the federal government.”

MHRA Amendments

The amendments make a number of changes to the MHRA. The key changes are as follows:

  1. Motivating Factor Standard

The new law replaces the judicially created “contributing factor” standard with a more rigorous “motivating factor” standard—a standard that is equivalent to that of federal law and most other states. Under the new law, “motivating factor” means that “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.” [Emphasis added.]

  1. Individual and Supervisor Liability

The new law ends judicially created individual or supervisory liability pursuant to which a plaintiff can sue a supervisor or manager in his or her personal capacity for alleged harassment, discrimination, or retaliation. The new law specifically excludes from the definition of “employer” any “individual employed by an employer.” This means supervisory, managerial, human resources, and other affected employees in Missouri would no longer face the prospect of being sued in their individual capacities in MHRA cases. This is perhaps most significant for out-of-state employers doing business in Missouri because, once the law is in effect, plaintiffs’ attorneys will no longer be able to prevent such employers from establishing diversity jurisdiction and litigating MHRA cases in federal court, as expressly provided by federal law.

  1. Damage Caps

The new law also imposes caps on the compensatory and punitive damages that are recoverable under the law that are similar, although higher, to the caps under federal law. Depending upon the size of the employer’s workforce, these caps range from back pay plus $50,000 to back pay plus $500,000.

  1. Summary Judgment

The new law requires state courts to use the summary judgment mechanism for purposes of determining whether cases should proceed to trial based on the evidence (or lack thereof). This is a mechanism that is available to employers under federal law and in almost all other states but was rendered practically extinct by the Missouri judiciary.

  1. “Business Judgment” Instruction

The new law requires a trial judge to issue a “business judgment” instruction to the jury in every case filed under the MHRA. For example, the “business judgment” instruction currently required in Missouri federal court discrimination trials is as follows:

You may not return a verdict for the plaintiff just because you might disagree with the defendant’s decision or believe it to be harsh or unreasonable.

Without such an instruction, plaintiffs have effectively argued for employer liability based on an argument that a decision was merely unfair or unreasonable. Now, the jury instructions would require an actual finding of some form of unlawful discrimination.

The new law also abrogates certain other state court judicial decisions and jury instructions that have been hostile to employers.

Whistleblower Codification

The whistleblower codification is similar to the MHRA amendments in that a “motivating factor” standard is required for causation and supervisory/managerial liability is eliminated. Other key provisions of the new law’s whistleblower codification include the following:

  • In addition to eliminating supervisory/managerial liability, under the law, neither the state nor its political subdivisions could be sued on a whistleblower cause of action.
  • Remedies for successful whistleblower plaintiffs will be altered from the current possibilities, but not in the manner MHRA remedies are altered. Instead, a successful plaintiff could recover back pay plus reimbursement of medical bills, and, if the employer’s conduct was outrageous, the plaintiff could recover double his or her back pay plus payment for his or her medical bills (but not punitive damages). Reinstatement is not available to a successful plaintiff, but attorneys’ fees are available.
  • The whistleblower retaliation cause of action would be codified by defining who is and who is not a “protected person.” Importantly, the legislature has specified that certain high-ranking employees cannot be whistleblower plaintiffs if their jobs are to report or give professional opinions on such misconduct internally.
  • Finally, the new law codifies the exceptions to the common law at-will doctrine and prohibits the Missouri courts from expanding those exceptions any further.

Conclusion

Overall, the governor’s signing of this law marks the end of nearly a decade of unfavorable judicial decisions in MHRA and whistleblower cases. The changes to the MHRA put the MHRA in line with federal and 38 other state’s anti-discrimination and anti-retaliation standards.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.