Nondiscrimination legislation shunted aside again this year

You could tell it was 1998 because of the large glasses sported by many legislators, the black and white profile pictures of lawmakers on the Legislature's website, and the Democratic majority in the General Assembly.

That year, state Rep. Steve McLuckie, D-Kansas City, introduced the first version of the bill now known as the "Missouri Nondiscrimination Act." It would have banned discrimination based on sexual orientation in housing, employment and public accommodations.

McLuckie's bill was heard by a House committee, but it never got a vote. A version of the LGBT protections legislation has been filed almost every year since 1998 in the House and the Senate, and it still hasn't made it out of the Legislature. In 2013 the Senate passed a bill similar to the nondiscrimination act on the last day of session, but the House didn't take it up.

This year, state Rep. Stephen Webber, D-Columbia, and state Sen. Joseph Keaveny, D-St. Louis, are the leaders of the effort. Although their bills - House Bill 407 and Senate Bill 237 - are not too different from McLuckie's, they include gender identity as a potential protected category.

Missouri has 160,000 adults who identify as lesbian, gay, bisexual or transgender, including 100,000 who are part of the state's workforce, according to a 2013 study by the Williams Institute, a non-partisan think tank based in the UCLA Law School that does research on LGBT issues.

Missouri offers few protections for people who identify as LGBT. The state's Human Rights Act protects people against discrimination in housing, employment and public accommodations based on: race, color, religion, national origin, ancestry, sex, disability and age.

Sexual orientation and gender identity are not part of the law.

"For me, it's an issue of fairness," Webber said. "It's an issue of justice, and it's about allowing everybody to achieve their potential."

Why so stalled?

In 2004, 71 percent of Missourians voted in favor of a constitutional amendment to define marriage as only between a man and a woman, according to previous Missourian reporting.

At the time, support for same-sex marriage in the state was about 30 percent, according to research by the Williams Institute. By the end of 2014, when St. Louis Circuit Judge Rex Burlison ruled that the amendment was unconstitutional, support for same-sex marriage in Missouri had shot up to about 58 percent. Missouri was among one of the states in the country with the fastest increase.

Public opinion about gay and transgender rights and same-sex marriage has changed relatively quickly, MU political science professor Peverill Squire said. So have society's perceptions of LGBT people - and LGBT people's perception of society.

Ninety-two percent of lesbian, gay, bisexual and transgender adults have seen society become more accepting of their identities since 1993, according to a June 2013 Pew Research survey.

Among the general public, 55 percent of Americans had favorable views of gay men, an 18 percent increase from a decade earlier. Over the same time span, favorable views of lesbians went up from 29 to 58 percent.

The findings come with a caveat. Forty-five percent of adults consider "engaging in homosexual behavior" to be a sin, according to the Pew survey.

Historically, Missouri has been slow in representing social change, said Squire, who specializes in American politics and legislative issues.

And even when there's a quick change in public opinion, "most politicians won't be in the front of the shift, they'll be following behind," Squire said. Legislators are "very sensitive"to their constituents' opinions, but it's difficult to know what people back in the district think. Not many people contact lawmakers.

"The people they'll hear from will carry a lot of weight because those are the people that care enough about an issue to contact their legislator," Squire said.

The issue is even trickier for some Republicans, especially if their races are in districts where Democrats aren't a threat. A lot of Republicans who might support LGBT rights could be dissuaded for fear of losing their seat to a candidate perceived to be more conservative.

For Webber, who has always supported LGBT rights, that argument isn't convincing.

"To me, you protect human rights regardless of whether there's a political cost or not," he said. "I don't think you play politics with people's sense of safety."

Since its inception, banning discrimination based on sexual orientation and gender identity has been mostly a Democrat issue. But there's been moderate increase in Republican support since 1998.

In 2014, Rep. Kevin Engler, R-Farmington, filed his own legislation to include sexual orientation and gender identity in the Missouri Human Rights Act. And in a March 15 hearing on Webber's bill, Rep. Galen Higdon, R-St. Joseph, offered a candid response to the Missouri Chamber of Commerce's Jay Atkins' testimony in opposition of the nondiscrimination legislation.

"I don't understand why you would object to someone's private life," Higdon said during the hearing.

Still, there's not enough Republicans in favor to make a difference, Squire said.

That's going to have to change if LGBT protections are to become law, Webber said.

"If we're going to pass language that protects LGBT folks, we're going to need the Republican Party to become part of the solution rather than being an obstacle," he said.

The biggest hurdle may not be the level of Republican support or the number of Republicans in the General Assembly. Kyle Piccola, a lobbyist with LGBT advocacy group PROMO, said the problem is the sheer number of first-year legislators, a byproduct of the term limits law.

"That's a lot of people. A lot of people to get to know. A lot of people to educate about this. A lot of people to gauge," Piccola said. "These are people who are hearing about this issue for the first time, and we're having to have that education process from scratch with them."

An alternative solution

Cities have stepped up to protect LGBT people in the absence of a state law. By a Williams Institute's 2013 count, 18 localities in Missouri, including Columbia, have ordinances that prohibit discrimination based on sexual orientation. Sixteen of those local policies also protect people based on gender identity.

Proponents of the nondiscrimination act say these local laws are not enough.

"It's a patchwork of protections," Webber said. "If you move outside of Columbia ... or your job isn't located within city limits, you're not protected anymore. You shouldn't have to take a job based on where it's geographically located."

In Columbia, people can file discrimination complaints with the city's Human Rights Commission, which mostly encourages mediation. The remedies the commission can order are limited because it can't issue "right to sue" notices, which allow people to file private lawsuits, Columbia Assistant City Counselor Adam Kruse said.

Down to business

In almost every hearing on Keaveny's and Webber's bills, you can count on the Associated Industries of Missouri and the Missouri Chamber of Commerce and Industry to speak in opposition.

Associated Industries, a trade organization that represent more than 400 Missouri businesses, is against adding new protected categories to the Missouri Human Rights Statute, said Ray McCarty, president and CEO of the organization.

Doing so could lead to a "new line of lawsuits to be brought against employers," McCarty has said.

If the new law results in new litigation, Webber said, it's because it's addressing a problem.

"To say we're not going to protect somebody's rights because we're worried about a crowded court docket - to me, it doesn't make sense," Webber said. "To me, that's the wrong priorities."

Keaveny's answer to new litigation claims was simple.

"If you don't discriminate them, then you're not going to get sued," he said.

Including sexual orientation and gender identity in the statute would make it more difficult for employers to "get rid of bad workers" and would allow employees to game the court system, McCarty said.

"There's no way to prove whether or not that employee truly is a person that has a gender identity issue, and there's no way to prove timeline-wise whether that gender identity issue existed before or after the employment action, or whether it existed at all," McCarty said.

Some legislation that has attempted to add new protected categories has failed because it's difficult to define who's covered under the law, Sen. David Pearce, R-Warrensburg, said.

"When you start identifying certain classes and when you start identifying certain people for protection then in a way the argument could be made that you're elevating those folks and then also that you might leave somebody out who is just deserving of protection as a person who might be listed," Pearce said.

He doesn't have a specific position on Webber's or Keaveny's bills, he said.

The best way to address discrimination is to encourage companies to adopt their own policies, McCarty said. About 95 percent of Fortune 500 companies have internal guidelines that ban discrimination based on sexual orientation and gender identity, Piccola said during the March 17 hearing on Webber's bill.

Yet, a state law is necessary, because it is difficult for employees to sue employers for a violation of a company policy, Matthew Ghio, an employment attorney who has only represented workers, said. Under state law, employee handbooks for private non-governmental companies aren't enforceable contracts, he said.

Associated Industries is also concerned about the standard of proof used to try discrimination cases, McCarty said.

Under federal law, plaintiffs must show that discrimination was a "motivating factor," or the primary reason for any adverse action taken against them, such as firing or demotion, Kruse, the Columbia Assistant City Counselor, said. The Equal Employment Opportunity Commission is in charge of receiving and processing discrimination complaints on the federal level.

According to state law, employees must show a discrimination was a "contributing factor," or partial motivation for an employer's or tenant's actions. At the state level, people can file a charge with the Missouri Human Rights Commission.

"Missouri employment law framework is precariously out of balance and puts employers at distinct disadvantage when facing litigation," McCarty has said.

Employees alleging discrimination are more likely to file a complaint with the Missouri commission than with the federal agency because the state's threshold of proof is more favorable for workers than the federal standard, said Amie Needhman, a St. Louis-based employment lawyer who represents employers.

In legislative hearings, the Missouri Chamber, which represents more than 40,000 Missouri employers, has also said it's concerned about the state's litigation standards.

Missouri is currently one "of the easiest states in the nation in which to bring a discrimination lawsuit," Missouri Chamber Vice President of Communications Karen Buschmann said. Companies avoid setting up shop in Missouri because of the state's unfriendly business litigation climate, she said.

Out of the 50 states, Missouri ranks 34th in terms of litigation environment, according to a 2012 U.S. Chamber of Commerce survey of senior attorneys and executives in companies with at least $100 million in annual revenues. The survey asked attorneys to assess the timeliness of dismissal of cases, the judges' impartiality and the juries' fairness, among other legal areas.

About 70 percent of respondents said a state's litigation environment is important in businesses decisions, including the choice of where to locate or do business.

The U.S. chamber's survey takes a broad look at states' litigation climate but does not directly mention discrimination lawsuits or the standard of proof used in those cases.

Supporters of the nondiscrimination legislation say lowering the standard of proof in the state would be to "write discrimination into the law."

Needhman disagrees.

"Plaintiffs win all the time under that (motivating factor)," Needham said. "The standard that we have here now absolutely discourages business in the state of Missouri."

Ghio, who has only represented employees, offered a different perspective.

"It is always difficult to prove discrimination," he said. "People do not openly express their prejudices and biases. Thus these cases are difficult to prove. That is why in trials you see plaintiff verdicts and defense verdicts."

If the standard was changed from contributing to motivating factor, the Missouri chamber would be open to collaborating with Keaveny and Webber to work out a compromise, Buschmann said.

Piccola, however, said there's not much room for concessions.

"The motivating factor issue is a completely different issue that really has nothing to do with us including sexual orientation and gender identity into the human rights statute," he said.

Independent voices

Sometimes, businesses also like speaking for themselves.

Monsanto, Express Scripts and the St. Louis Regional Chamber of Commerce voiced their support for the legislation at a hearing on Webber's bill on March 15. All of these organizations are members of the Missouri chamber.

About two years ago, PROMO started gathering letters of support from businesses that support the bill to add LGBT protections. So far, almost 1,000 businesses have signed on, according to a list posted on PROMO's Facebook page. The post was removed about a week ago.

"We know that the business community definitely supports this type of protections," Piccola said. "The number one reason being many businesses have already been at the forefront for protecting their LGBT employees from discrimination."

The Missouri chamber represents about 40,000 Missouri businesses, Buschmann said. On its website, the organization publishes the names of 97 of its members. Ten of the Missouri chamber's publicly known members are also listed on PROMO's list of businesses that support the nondiscrimination legislation.

Individual companies' support of the nondiscrimination bill has led some observers to say there's a divide in the business community. But Buschmann said all the Missouri chamber wants is to make the bill "the best for all parties."

"We all agree that discrimination is wrong and it has no place in the workplace," she said. "Perhaps we disagree about the exact path to get to rectifying, but, at the end of the day, we all want discrimination-free workplaces where our employees can thrive. We all agree on that. There's no divide."

LGBT protections' future

PROMO sent a news release on March 14 that momentum was building for the Missouri Nondiscrimination Act in the Legislature.

On March 22, Piccola arrived at House Hearing Room No. 1 a few minutes past noon. He checked his phone as he waited for a House Civil and Criminal Proceedings Committee hearing to start. It was possible Webber's bill, which the committee had heard on March 15, would be brought up for a vote.

One by one, Chairman Robert Cornejo, R-St. Peters, announced the bills up for executive session. Webber's bill never came up. When the committee ended its time for voting and started discussing other legislation, Piccola quickly stood up and left the room.

Keaveny's bill was passed March 8 by the Senate Progress and Development Committee, of which he is chairman. No further action is scheduled on the bill.

Squire said the LGBT protections bill is an "incubated policy," or a bill designed to start a debate. Sometimes, it takes a very long time for that type of legislation to get passed.

"I don't think there's much appetite in the current General Assembly in the absence of some strong public pressure to add those provisions," Squire said.

The question is whether Missouri will eventually pass LGBT protections or if they will be forced on the state by the courts and changes in society, he said.

As long as there's a Republican majority, it's more likely the legislation will move if there's pressure from the business community, he said.

Increasingly, large companies in Missouri are coming out and supporting LGBT protections.

"They have a vested interest in it," Squire said. "They have employees that they worry about and they have been in many ways in the last few years much more vocal about these issues."

Keaveny assessment of the bill's chances weren't very positive.

"Am I optimistic that I'll get it passed this year? Not at all," he said. "But we got to keep the conversation going."

Webber said that, because of term limits, he may no longer be in the General Assembly by the time the legislation gets approved, but that it will eventually become law.

"This bill is going to pass," he said. "The side of justice in LGBT rights is going to win.

"It's just a question now of how long the struggle is and how much pain the other side inflicts before they finally lose."