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.]

2. 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.

3. 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.

4. 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.

5. “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.