Committee hears workplace discrimination bill

Although the House passed the bill two months ago, a Senate committee heard testimony Monday afternoon on the bill changing some of the language in Missouri’s human rights law, including its workplace discrimination language.

Two previous versions were vetoed by Gov. Jay Nixon.

“So, we’re back again on this employment law issue,” Rep. Kevin Elmer, R-Nixa, told the Senate’s Judiciary and Criminal Jurisprudence Committee. “This year the House passed something with a few less issues in it. ...

“I’m trying to get something that, possibly, the governor would not oppose.”

But, he acknowledged, the newest version still changes the law so that employees must show that an employer’s alleged discrimination was the “motivating” factor for the decision — not just a “contributing” factor as current law allows.

However, Elmer added, the House-passed bill goes “to a much higher cap on damages in this case ... (to) the greater of $500,000, or five times the actual economic damages awarded.”

And the current laws about protections for “whistle-blowers” — when they cite a problem or potential problem in their employers’ operations — have been moved out of the state’s “human rights act” to a different law.

Rich AuBuchon, a lawyer representing both the Missouri Chamber of Commerce and Industry and St. Louis-based Enterprise Holdings Co., told the committee “this is a serious matter. We’re trying to find some approach that would make the governor sign the bill.”

Jane Drummond, a Jefferson City attorney, told the committee “about 95 percent of my practice is employment litigation ... on behalf of employees and employers.”

She described the current legal “landscape” as “very unfair to employers.”

She added: “What this bill does, that makes everything a lot more fair, is it gets rid of this ‘contributing factor’ standard that is a very, very low bar.”

The current law lets employees with very marginal cases to “leverage” those for higher money settlements, she said.

“Employers that I represent are paying way more than these marginal cases are worth, to avoid the expense and risk of paying attorneys’ fees at trial,” Drummond explained.

She also applauded this year’s bill keeping a provision protecting government agencies from paying punitive damages if they lost an employment discrimination suit — even though that language was in the versions Nixon previously vetoed.

Paul Bullman, a Kansas City lawyer who represents plaintiffs in discrimination suits, told the committee the proposal could hurt discrimination claims based on religious grounds.

He said the current law’s “contributing” standard would protect people like “a traditional Christian family — who has for generations had a Sabbath accommodation on Sunday so they could go to church, interact with church groups and spend time with their family.”

But if the standard is changed to “motivating,” he said, that employee’s case “will never get to a jury because there’s going to be no evidence that a company was ‘motivated’ by (the employee’s) Christian values.”

Shawn Dabreu, a lobbyist for 18 of Missouri’s 22 Centers for Independent Living, said changing the standard would mean “a person would either have to get a confession that the discriminator is saying, ‘I am discriminating ... ,’ ... or a person would have to be able to read (another) person’s mind to be able to determine what their internal motivation is.”

Even under the current law, Dabreu added, “In disability cases, almost 90 percent of (those) discrimination cases are ruled in favor of the employer.”

Eric Krekel, the Human Rights Commission’s Investigative Operations director, told the committee the proposed changes “could jeopardize some of the federal funding that we (now) receive from the Department of Housing and Urban Development and from the Equal Employment Opportunity Commission.”

Krekel testified the commission can contract with those federal agencies “because the Missouri Human Rights Act” — the law the proposed changes would affect — “has been established as being substantially equivalent to the federal civil rights law.”

Although supporters say the proposed changes would bring Missouri into a closer agreement with federal law, Krekel told the committee: “Both HUD and EEOC have expressed concerns that, if this bill is passed, (Missouri law) may not be substantially equivalent with the federal Civil Rights acts.”

And Don Love of Columbia, a co-chair of the Missouri Association for Social Welfare’s Human Rights Task Force, told the committee: “As a society, we have made progress in reducing prejudice related to race, color, religion, national origin, ancestry, sex, age, disability, family status and, even, sexual orientation and gender identity.

“But much is left to do — we need to work together to fight discrimination, and not just be satisfied with making it easier on employers.”

With only three weeks left in the 2013 legislative session, the committee made no recommendation about sending the House-passed bill to the full Senate for debate.

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