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Employment discrimination laws nearing finish line

Regardless of the issue, moving a bill across the finish line often requires multiple attempts. For the last three sessions, I’ve sponsored legislation aimed at restoring fairness and balance to Missouri’s employment discrimination laws and better protecting our business community from harmful frivolous lawsuits. Today, I am pleased to be able to report that this year’s vehicle, Senate Bill 43, is now one vote away from heading to the governor’s desk.

Senate Bill 43 changes the standard for determining whether an employer is liable for a discrimination charge under the Missouri Human Rights Act (MHRA), as well as the Whistleblower Protection Act, from a contributing factor to a motivating factor. An earlier version of SB 43 would have changed the standard to “because of, but for causation.” This would’ve restored the original meaning and legislative intent behind existing statutes — something Missouri courts began moving away from in 2005, when an advisory committee of lawyers drafted model jury instructions that abandoned “because of” language in favor of the lower contributing factor standard.

Agreeing to change the standard is just one of several compromises that occurred throughout the process. Increasing the caps on how much juries may award in damages for employers with more than 500 employees from $300,000 to $500,000 was another. I also agreed to drop language prohibiting state employees and employees of political subdivisions from being awarded punitive damages in MHRA cases.

Senate Bill 43 further stipulates that a person who claims to have been discriminated against must file a complaint with the Missouri Commission on Human Rights (MCHR) within 180 days of the alleged unlawful conduct. It also provides that the Commission may only issue a “Right to Sue” letter under certain circumstances. The current system encourages individuals to pursue a case the MCHR has already deemed meritless simply to force a settlement, costing small businesses time and money they don’t have. This is something I’ve personally experienced as a business owner. The Commission determined the employee’s case had no merit, yet they still sent out Notice of Right to Sue letters, opening up the case all over again.

Before I wrap up what’s likely to be my last detailed column on SB 43, I want to take a moment to reiterate what this legislation is — and more importantly, what it isn’t. First, SB 43 is not a response to the 2015 lawsuit against my company. To be clear, I first filed this language in 2014, months before the lawsuit was even filed. And I wasn’t the first lawmaker to sponsor it; similar bills have been filed in every session as far back as 2006.

Second, SB 43 isn’t a means to get around any ongoing litigation involving my business. It is in no way retroactive and therefore doesn’t apply to any case opened before the law takes effect. Nor is it about permitting discrimination or making it easier for businesses to mistreat their employees. I firmly believe employers who discriminate on the basis of race, religion, sex or another protected class should be held accountable for their actions, and their employees should be able to pursue justice. This is why I specifically included language to ensure that any party to an action filed under the MHRA has a right to a jury trial.

While it’s a relief knowing SB 43 is now in the home stretch of becoming a law, it’s certainly been frustrating at times reading and listening to the media’s rather one-sided portrayal of it. Along with the points I mentioned above, the fact that the discrimination case brought against my business was found to be meritless is often left out. So too is mention of the many businesses and business organizations, such as the Missouri Chamber of Commerce and Industry, that support this legislation. Rather than seeing this bill for what it is — one of the most significant economic development measures to come along in years — the media has been more interested in eliciting the opinions of trial attorneys, SB 43’s only real opposition and a group of people who generally stand to lose from any significant progress on the tort reform front.

Since 2005, our courts have encouraged a system that rewards litigious behavior and fraudulent claims. A system that says simply being a member of a protected class is enough to bring a discrimination case against an employer, regardless of the circumstances. A system that has undermined the value of a discrimination case for those who have experienced true discriminatory acts. The bottom line: Missouri has been heading down the wrong path for 12 years, and it’s been happening at the expense of our businesses and job creators. Thankfully, SB 43 will finally allow us to start reversing course.

There have been many folks over the years who recognized the need to restore fairness and balance in our employment discrimination laws and who worked hard to get this language passed. As I’ve said before, although I was not the pioneer of this effort or the original architect, I’m proud to have been a part of it. With one final vote in the House, SB 43 will head to the governor’s desk for his consideration.

I always appreciate hearing your comments, opinions and concerns. Please feel free to contact me in Jefferson City at 573-751-4008. You may write me at Gary Romine, Missouri Senate, State Capitol, Jefferson City, MO 65101; or email me at gary.romine@senate.mo.gov.

Gary Romine

Gary Romine

This report was filed April 21, 2017

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