UPDATE: Missouri House passes bill to change discrimination laws

Thursday, February 24, 2011 | 7:06 p.m. CST

JEFFERSON CITY — The Missouri House of Representatives passed legislation Thursday that could make it harder for employees to win workplace discrimination lawsuits.

The legislation, approved by 95-59 vote, would require people to prove that discrimination was the "motivating factor" when they were fired rather than a "contributing factor." The bill now goes to the Senate.

Federal courts use the motivating factor standard in employer discrimination lawsuits. Missouri used the standard until 2008, when the state Supreme Court said the contributing factor standard could be applied to a lawsuit filed by a former police officer against the city of Maryland Heights.

The bill would also limit which businesses can be sued and the amount of damages that people can recover. The legislation defines an "employer" — for the purpose of discrimination lawsuits — as someone who employs at least six people for at least 20 weeks of the year.

It also sets a scale for the maximum amount of damages that people can recover — as much as $300,000 plus any back pay they are owed after being fired.

Rep. Sylvester Taylor, D-Black Jack, said raising the burden of proof for victims of discrimination would give employers less incentive to prevent discrimination, such as racism in the workplace. In an emotional speech before the vote, Taylor, who is black, said that the bill's sponsor, Rep. Kevin Elmer, R-Nixa, who is white, could not understand the impact discrimination has on a worker.

"You don't get when a woman is being discriminated against," Taylor said, his voice rising. "You don't get when a noose is hung over your workplace. You don't get when a monkey is taped to your lunchbox. I have. It's not something to laugh about. It's not funny."

Taylor said lawmakers should have instead strengthened the ability of discrimination victims to sue the individuals who discriminated against them.

"We say that this is a jobs bill, and it helps companies," he said. "We cannot help anybody when we protect the people that are committing these egregious acts."

Elmer said people who believe they have been discriminated against would still be able to sue the individual they think had committed the discrimination. He said changing the burden of proof for lawsuits against employers could help Missouri draw more potential employers and jobs to the state.

"We're trying to meet the federal standard and make Missouri on line with the rest of the states around us," he said.

The proposed law also includes a section called the Whistleblower Protection Act. Because Missouri is an "at-will" employment state, workers can be fired at any time and without notice. The protection act puts into statute exceptions to that "at-will" status that the courts have made for people who report acts of wrongdoing at their company, called "whistleblowers." The proposal says that employers can ask for a jury trial in whistleblower cases, and it limits damages a plaintiff can receive to $300,000 plus back pay.

Rep. Rory Ellinger, D-University City, said the standard of proof that whistleblowers have to meet under the bill is so high that it would be more difficult for whistleblowers to sue if they are wrongly fired. He called the legislation "unfair" and "anti-Missourian."

Elmer said the legislation still contained most of the same protections the courts had established.

"I think Missourians stand their ground," Elmer said. "They know their morals; they know their values; they know their principles. I think if they were fired because of that, I believe with all my heart that no bill is going to stop them from going to court."


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