Sara McCleary Feb. 3, 2017, 1:40pm


JEFFERSON CITY – Proposed changes to Missouri’s discrimination laws will impact future employment lawsuits in the state if passed.

Senate Bill 43, which was brought to a state Senate committee hearing in late January, would allow employment discrimination decisions in Missouri to be based on U.S. Supreme Court rulings rather than those of the state courts.

Those who feel Missouri law unreasonably favors plaintiffs argue that the burden of proof is too low. Under current Missouri law, plaintiffs must prove that one of the protected characteristics had been a “contributing factor” in their treatment, but if the legislation is passed, that requirement will change to proving that their treatment was “because of” that characteristic.

Several members of minority groups have spoken out against the changes, arguing that they will make it harder for those who have been discriminated against to seek recourse.

The idea of using U.S. Supreme Court decisions at the state level is not a new one.

“Many states interpret at least pieces of their state law by applying Supreme Court rulings on federal law that is just like their state law,” Marcia McCormick, a law professor at St. Louis University’s School of Law, told the St. Louis Record. “The law governing Title VII is a lot more developed than state laws are just because there are a lot more federal cases than there will have been brought in a single state. So where the language is the same and the purposes are the same between the state law and Title VII, it makes sense to borrow the reasoning the Supreme Court has used.”

Title VII is the part of the Civil Rights Act that prohibits employer discrimination.

Also under debate is the amount of damages that can be sought and awarded in employment discrimination cases. Under the proposed changes, damages will be limited based on the number of employees working at a business. Employees at businesses with fewer than 100 workers will be eligible for no more than $50,000 in damages, while those who worked at companies with more than 500 employees can seek up to $300,000.

This is a more controversial part of the proposed changes.

“There are problems in the employment context limiting damages,” McCormick said. “One is that there are lots of economic damages, not just lost wages and benefits, but also other financial burdens imposed by not getting a job or being fired, like an inability to pay rent or one’s mortgage and the economic injuries that flow from that. It’s easy for those different kinds of damages to add up.”

McCormick said that there are arguments in favor of limiting damages, as well.

“Running a business is costly and requires being able to accurately predict future costs," she said. "[Large damages] are harder to plan for and harder to insure against. And that uncertainty of risk may make insurance more expensive than it ought to be, also… Finally, smaller businesses are hit particularly hard by this uncertainty. Limits add predictability and reduce the risk.”

If passed, the changes will also ensure that only employers could be subject to litigation, not those acting on their behalf.

“Employers are often not a single person but an entity,” McCormick said. “So the discriminatory conduct might actually be the result of [an employee] rather than the employer itself, but the employer is what is legally responsible and must pay damages… So a supervisor who fires a person because of her race discriminates, but doesn’t pay damages; the entity or business owner does… Missouri law has been interpreted to allow for individual liability, so this amendment would remove that, leaving only the employers — the company, partnership or business owner — liable for damages.”

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