For more than a decade, Missouri businesses have faced an uphill battle in lawsuits over whether discrimination played a role in firing decisions.
Currently, an employee who brings a retaliation action against an employer must prove only that discrimination contributed in some manner to the adverse action. In most other states, and in federal court, the plaintiff employee must prove that the adverse action was motivated by discrimination.
Missouri’s lenient discrimination law has opened the door to lawsuits by former employees who contend that their race, color, religion—or status among the state’s other statutorily-protected classes—contributed to their firings.
The Missouri General Assembly has been working for years to pass a fix that would shield companies from having to defend frivolous lawsuits while continuing to give employees who have faced discrimination the power to seek justice through the courts.
This year, Sen. Gary Romine, a Republican from Farmington, has filed Senate Bill 36, a bill that makes “motivating factor” the standard in discrimination cases in Missouri.
Sen. Romine, who owns a chain of rent-to-own stores in southeastern Missouri, said he has personally experienced how Missouri’s current “contributing factor” language can lead to costly, groundless litigation.
“I’ve experienced several occasions where we’ve had to dismiss an employee and they used certain protected classes as a reason to file suit against the company (when discrimination was) not the motivating factor at all. They used it as an excuse to initiate a lawsuit,” Sen. Romine said. “It’s very frustrating as a business owner because we have to foot the bill to defend ourselves.”
Sen. Romine’s bill also establishes caps on discrimination lawsuits, from up to $50,000 for businesses with up to 100 employees to up to $300,000 for companies with more than 500 employees. In addition, the bill clarifies the term “employer” in discrimination lawsuits, notably changing the law so that supervisors in discrimination suits cannot be sued as individuals.
Sen. Romine said this area of law has caused a drag on business investment and growth in Missouri.
“With this contributing factor being an issue, businesses are slow to grow and businesses are slow to move into Missouri because of this unknown,” said Sen. Romine. “It’s a high risk area for employment lawsuits.”
The “contributing factor” situation has existed in Missouri since the early 2000s when Missouri Supreme Court decisions tipped the scales against employers in discrimination lawsuits. Bills to fix the issue have been filed nearly every year since.
In 2011, a fix was sent to Gov. Jay Nixon, but he vetoed the legislation.
Sen. Romine said he has reached out to Gov. Nixon in hopes of starting a dialogue on the issue and finding common ground. However, even absent Gov. Nixon’s collaboration, Sen. Romine said the 2015 Legislative Session finds the capitol filled with more potential yes votes than ever. He thinks there is a strong opportunity to pass his bill this year.
“There is as desire to see this done,” Sen. Romine said. “Our concern right now is, ‘Can we get this passed the governor?’ He’s vetoed it in the past. But I think right now, with our majorities in the House and Senate, it’s time for us as a body to make a move and get this issue dealt with.”
As he pushes for action on his bill early in the session, Sen. Romine is asking Missouri business leaders for help.
“It is very important for constituents to talk to their Representative or their Senator from their area about this issue,” he said. “Get involved. Give anecdotal or real life experiences where these frivolous lawsuits have slowed your business down or disrupted your business in such a way that it’s harmed it and has kept you from expanding. These are the types of real stories that we want to hear about and know that this is a fact-based issue, not based on rhetoric or hypothetical situations.”
The Missouri Chamber of Commerce and Industry has been advocating for this proposal for years and is already working to secure passage this year.
For more information about employment law, contact Jay Atkins, Missouri Chamber general counsel and director of legislative affairs, at firstname.lastname@example.org, or by phone at 573-634-3511.