Two words could make all the difference for Missourians who try to sue their boss over discrimination.
Republican lawmakers are pushing for several changes to Missouri employment law, including caps on awards to plaintiffs and reduced protection for whistleblowers. But at a hearing this week in the Missouri Senate, the focus was a tweak in language that would effectively raise the burden of proof for those looking to claim employment discrimination.
If you’re fired because of your race, religion, gender or membership in another protected class, it would still be illegal. If other factors play a part, such as chronic tardiness, you may be out of luck.
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“Words mean something, and two little words have caused frivolous lawsuits for businesses,” said Sen. Gary Romine, a Farmington Republican sponsoring the legislation.
But to critics, changing Missouri discrimination law would only make it easier for employers to mistreat their workers.
Martin Meyers, a Kansas City attorney, testified against the bill Tuesday, saying that “employers who engage in unlawful conduct benefit the most.”
Under Missouri law, employees wishing to sue for discrimination must prove that a protected characteristic was a “contributing factor” in their termination. The new bill would switch the language from “contributing factor” to “because of.”
For proponents, it is business owners that need protection.
Tina Fowler, a Springfield employment law attorney, told the Senate committee that the current language sets the burden of proof too low. Discrimination claims, she said, are too difficult for employers to refute.
“So every time the case is going to make it to jury,” Fowler said.
Other bill supporters, such as St. Louis attorney Ian Cooper, said the way current discrimination language is written may be deterring businesses from setting up in Missouri.
The threshold for proving discrimination is higher federally and in some other states. In Kansas, employees have a harder time bringing suit and are eligible for lower payouts.
“Employers looking at the situation in Missouri would have to understand that the legal liability standard for employment is different from other states and neighboring states,” Cooper said.
“We want to make sure this is a balance between business owners and plaintiffs,” he said.
Meyers said the vast majority of businesses don’t discriminate and have nothing to fear under the current language. He said only employers who engage in unlawful conduct stand to benefit from the change.
“The people who get hurt are the people who have been victimized by unlawful discrimination,” Meyers said.
Republicans in the Senate have said the changes would simply bring Missouri in line with national standards.
Federal statutes use “because of” language in employment discrimination cases. The same goes for the Missouri Human Rights Act, the state law that prohibits discrimination in housing, employment and public accommodations.
But in 2005, a Missouri Supreme Court decision changed the way judges gave juries instructions in employment discrimination cases. Since then, the “contributing factor” standard has been applied.
The debate opened a brief conversation about who should be protected by Missouri’s discrimination laws. Currently sexual orientation and gender identity are not included.
Romine said he would not be willing to concede protected status to sexual orientation as part of this bill.
Republicans have passed employment-discrimination legislation several times in recent years. Each time it was vetoed by then-Gov. Jay Nixon, a Democrat who argued that the changes would make it easier to discriminate.
But Nixon was replaced this year by Republican Eric Greitens. While he hasn’t addressed this issue specifically, Greitens has said he supports an overhaul of the state’s legal system to make it more business friendly.
State Sen. Rob Schaaf, a St. Joseph Republican, sits on the committee that heard the bill Tuesday.
“Some people are going to be helped by this, but some people are going to be hurt,” Schaaf said. “Do you understand the other side?”