Discriminating by changing terms or privileges of employment also can be unlawful under the MHRA. Under Senate Bill 43, employees seeking to prove workplace discrimination now will have to prove that their membership in a protected class was the “motivating factor” for the employer’s adverse employment action. Senate Bill 43 also contains a number of other changes to Missouri’s employment discrimination laws.
Missouri’s Previous Standard
Prior to SB 43, an employee claiming employment discrimination had to prove that the employee’s status as a member of a protected class was “a contributing factor” in the employer’s action against them. If an employee was fired due to his or her age, a jury hearing the case would be instructed:
Your verdict must be for plaintiff if you believe:
- First, defendant discharged plaintiff, and
- Second, age was a contributing factor in such discharge, and
- Third, as a direct result of such conduct, plaintiff sustained damage.
If the jury found that age was a contributing factor to the employer’s decision, they would likely find the employer liable for damages. Evidence of a contributing factor could be found in any number of circumstances, but a plaintiff would not have to prove age was the only factor in the employer’s decision to fire, or the most important factor – merely a contributing factor.
Missouri’s New Standard
SB 43 replaces the word “contributing” with “motivating.” An employee seeking to prove discrimination now will have to prove their membership in a protected class “actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action.” While no jury instructions have been issued yet under this new standard, a new instruction might like look this:
Your verdict must be for plaintiff if you believe:
- First, defendant discharged plaintiff, and
- Second, age was the motivating factor in such discharge, and
- Third, as a direct result of such conduct, plaintiff sustained damage.
The new standard is similar to the one outlined in federal employment law. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin. A plaintiff can prevail under Title VII by showing that their membership in a protected class was “a motivating factor” in an employer’s decision.
Notably, however, SB 43 provides that a plaintiff must prove his or her membership in a protected class was ” the motivating factor.” Is ” the motivating factor” a higher standard than ” a motivating factor?” The definition given of “the motivating factor,” discussed above, is similar to the one used in federal law. While it remains to be seen how courts will handle instructing juries on this issue, careful and judicious advocacy will be needed on both sides of employment cases arising under the new standard.
Cap on Damages Based on Employer Size
Under SB 43, certain damages an employee could receive, if he or she wins at trial, now will be limited based on the size of the employer. An employee can receive “actual back pay and interest on back pay,” typically referred to as compensatory damages, which are not capped – but which must be calculated and proven. All other damages, including future loss, emotional pain, and punitive damages, are capped based on the size of the employer. An employer with between 5 and 100 employees only will be liable for a maximum of $50,000. An employer with between 100 and 200 employees only will be forced to pay a maximum of $100,000; one with between 200 and 500 only will be forced to pay a maximum of $200,000; and one with more than 500 employees only will be forced to pay a maximum of $500,000. With the new caps of SB 43 in place, if an employee works for an employer with 25 employees, proves age was a motivating factor in the employer’s decision to fire, and proves he or she was owed $10,000 in back pay and interest on back pay, the employee’s maximum available damages would be $60,000. Statutory caps similar to those in SB 43 have been the subject of numerous appeals, such as Watts v. Lester E. Cox Med. Centers, 376 S.W.3d 633 (Mo. 2012). In that example, the Missouri Supreme Court held that a Missouri statute imposing a cap on non-economic damages for medical negligence violated the right to trial by jury. Thus, the caps in SB 43 also will likely be challenged.
Individual Liability
Prior to SB 43, not only could employers be sued for employment discrimination, but individual employees working for the employer also could be sued. Supervisory employees often were named in lawsuits arising under the MHRA. SB 43 specifically prohibits plaintiffs from naming employees who are alleged to have discriminated or ignored discrimination by redefining “employer” to not include any individual employed by an employer. Now, plaintiffs will not be able to name individual employees as defendants in future state discrimination claims.
Whistleblower Provisions
SB 43 also contains provisions relating to a person who reports an unlawful act of his or her employer, such as a statutory violation, and subsequently has an adverse employment action taken against him or her – commonly referred to as a “whistleblower.” SB 43 allows whistleblowers who have adverse actions taken against them an avenue for recovering damages, but also caps the damages stemming from whistleblower lawsuits at twice the amount of back pay and medical bills a person is owed. The law does not provide for additional punitive damages in the event of a particularly outrageous set of circumstances. Rather, such damages only can be twice whatever back pay and medical bills a person is owed. Missouri law excludes the State and political subdivisions from whistleblower liability. Under SB 43, if a whistleblower proves his or her reporting of an unlawful act was the motivating factor in the employer’s decision to take an adverse employment action against him or her, and the employee was owed $10,000 in back pay and $20,000 in medical bills, the maximum additional damages that person could receive if he or she proved the employer’s conduct was outrageous would be $60,000, for a total award of $90,000.
What the Future Holds
Many provisions of SB 43 will be contested in the appellate courts. Among them are whether the change in the standard from contributing factor to motivating factor is “procedural” or “substantive.” If the change is deemed “substantive,” it could not apply to acts of discrimination or retaliation which arose before the law becomes effective August 28, 2017. However, if the change is “procedural,” then a court could require a plaintiff who filed his or her case before SB 43 was enacted to meet the new standard of proof. Regardless, employers should expect to see the number of lawsuits filed in the next two months jump before SB 43 goes into effect on August 28, 2017. Similarly, in 2005, when damage caps on medical malpractice lawsuits were passed, there was a substantial rise in lawsuits in the months before the caps went into effect. All employers and employees need to stay informed on the changes in Missouri law under SB 43 to ensure they are following the law and not exposing themselves to potential liability.
