Hunton Employment & Labor Perspectives

On June 30, 2017, Missouri Governor Eric Greitens signed a bill into law, Senate Bill 43 (SB 43), that makes substantial changes to Missouri’s employment discrimination laws. The Bill, which goes into effect on August 28, amends the Missouri Human Rights Act (MHRA) and creates the “Whistle Blower Protection Act.”

Numerous changes have been made to the MHRA, so the Bill is worth a read.  A few key changes that are likely of particular interest to employers relate to who may be liable for violations, the level of proof required to establish a violation, and the amount of damages that may be awarded.

Under the amended MHRA, individuals, such as supervisors, will no longer be liable for employment discrimination. Instead, only employers (as an entity) will be held accountable for discrimination.

The amendments require plaintiffs to prove that their “protected classification actually played a role in [and] had a determinative influence on the adverse decision or action [of the employer].”  In other words, that the protected classification was a “motivating factor” in the employment decision.  This is a higher bar than the “contributing factor” standard plaintiffs were previously required to meet.

Damages available will now have a clear cap.  Plaintiffs may recover their back pay, plus interest, and an amount of damages capped based on the number of the defendant’s employees, ranging from $50,000 to $500,000.  Attorneys’ fees, however, are not subject to the cap.

The new Whistleblower Protection Act replaces common law whistleblower claims and is intended to limit the expansion of common law exceptions to the employment-at-will doctrine.  The Act protects from discharge because of their protected conduct any employee who (subject to some exceptions): (1) “has reported to the proper authorities an unlawful act of his or her employer”;  (2) “reports to his or her employer serious misconduct of the employer that violates a clear mandate of public policy as articulated in a constitutional provision, statute, or regulation promulgated under statute”; or (3) “has refused to carry out a directive issued by his or her employer that if completed would be a violation of the law.”  Claims under the Act will be subject to the “motivating factor” standard. Courts may award successful claimants back pay and reimbursement of directly-related medical bills.  The recovery may be doubled if the employer’s conduct was outrageous because of evil motive or reckless indifference to the rights of others.  Claimants may also recover reasonable attorney fees and costs.