Missouri Employers Await Governor’s Action on MHRA Amendments

By: Anne Baggott

On May 8, 2017, the Missouri House approved a bill that significantly changes the Missouri Human Rights Act, the key statute applicable to unlawful employment practices in Missouri, and sent it to Governor Eric Greitens for his signature. The governor’s deadline to act on the bill is fast approaching. He has until July 14, 2017, to sign or veto. Despite the passage of six weeks, Governor Greitens is still expected to not veto the bill because of his goal to support Missouri employers, although he is being actively lobbied to veto it.  As long as he does not veto the bill, it will go into effect on August 28, 2017.

Key changes to the Missouri Human Rights Act:

• Damage awards are limited to back pay, plus interest on back pay, plus a cap on the amount awarded for future actual damages, emotional distress, and punitive damages, with a progressively larger cap based on the number of employees:
  • 6-100 employees: $50,000;
  • 101 to 200 employees: $100,000;
  • 201 to 500 employees: $200,000;
  • 501+ employees: $500,000.
• A higher level of proof for the employee to establish the unlawful discrimination or retaliation caused the adverse employment action.
• No individual liability for supervisors or co-workers.
• A “business judgment rule” jury instruction that prevents a jury from finding in favor of the employee at trial merely because it disagrees with the employer’s decision or finds it unreasonable.

Assuming the amendments go into effect on August 28, many employers are grappling with whether the amendments will apply retroactively – to claims and causes of action that accrue before August 28 or are currently filed – or whether the amendments will apply only prospectively – to causes of action that accrue or lawsuits that are filed on or after August 28. For example, will the current version of the statute or the amended version apply in the following situations?

• The lawsuit was filed in January 2016, but summary judgment motions are due after August 28, 2017.  Will the court apply the current or amended statute when ruling on the motion?
• The lawsuit was filed in January 2016, but trial is set after August 28, 2017.  Will the jury hear the current version of approved instructions, or instructions applying the amended statute?
• Trial is set to start on August 21, 2017, but the jury does not render a verdict awarding the employee damages until August 31, 2017.  The emotional distress and punitive damages award exceeds the cap set for the employer based on the number of employees.  Will the award stand, or will it be reduced to statutory caps under the amended statute?
• The alleged discrimination happened in November 2016, and the charge of discrimination was filed in April 2017, but the lawsuit is not filed until after August 28.  Which version of the statute applies?
• The alleged discrimination happened in July 2017, the charge of discrimination was filed in September 2017, and the lawsuit was filed in April 2018. Which version of the statute applies?

The Missouri legislature did not include language in the amendments as to whether they will apply retroactively or prospectively. As a result, the courts will decide these issues. Employers, employees, and their attorneys will not get definitive answers to these and many other questions until the issues work their way through the appellate courts, which could take months to years.

Contact Anne Baggott at 816-931-2700 or abaggott@dysarttaylor.com.

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