Many employers are now at risk of waiving timeliness defenses due to a recent Missouri Supreme Court decision that completely changes how they raise challenges to the timeliness of a discrimination claim under The Missouri Human Rights Act (“MHRA”). The MHRA provides that a charge of discrimination must be filed within 180 days of the act that is allegedly discriminatory. Previously, an employer could wait to challenge the timeliness of a claim until the employee actually sued the employer in court. But due to the court's decision, untimely allegations of discrimination should first be challenged while the charge of discrimination is pending before the Missouri Commission on Human Rights (“MCHR”).

If the MCHR issues a Notice of Right to Sue on a charge of discrimination that includes untimely claims, according to our state Supreme Court, the only way to challenge the timeliness of such claims is to file a lawsuit against the MCHR within 30 days of the Notice of Right to Sue asserting that the Commission lacks authority to issue the Notice of Right to Sue. If an employer does not file a timely lawsuit, the Supreme Court now says the employer cannot later challenge the timeliness of the charge or lawsuit. Thus, an employee can file a charge that is clearly barred by the statute of limitations, obtain a Notice of Right to Sue from the MCHR, and avoid having those claims dismissed if the employer fails to file a timely lawsuit against the MCHR contesting its authority to issue the Notice of Right to Sue.

If you are an employer, it is imperative that the following steps be taken promptly:

1. Determine whether the MCHR has issued a Notice of Right to Sue involving your company within the last 30 days. If you wish to dispute the timeliness of claims made in the charge of discrimination, according to the Supreme Court’s decision, you must sue the MCHR within 30 days of the date on the Notice of Right to Sue. If you fail to do this, you likely will not be permitted to raise a timeliness challenge if the employee sues. In other words, even though you do not know if the employee is going to sue you, you will have to sue the MCHR in order to preserve your defense that the employee’s claims are barred by the statute of limitations.

2. Review every charge of discrimination against you that is pending with the MCHR or pending before the EEOC if the employee worked in the State of Missouri. For each charge, you must insure that you have appropriately challenged the timeliness of the charge and the MCHR’s authority to issue a Notice of Right to Sue with respect to untimely claims.