Missouri bill would bar punitive damages for state employees in discrimination cases

As state lawmakers continue to investigate charges of widespread discrimination in the prison system, legislation being debated in the Missouri Senate would make it harder for many of those state employees to prove their allegations in court.

And it would be impossible for them to win punitive damages — at a time when juries have been awarding state employees millions of dollars.

The bill’s sponsor, Republican Sen. Gary Romine of Farmington, says the situation in the Missouri Department of Corrections had no bearing on his bill. He has sponsored similar legislation for several years, and other GOP senators sponsored the bill before that.

But the juxtaposition has critics of the bill crying foul.

“Rather than attempt to address the problem, our elected officials turn around and propose a bill aimed at gutting the rights of victims of discrimination,” said Gene Graham, an Independence lawyer representing several Corrections Department employees in lawsuits against the state.

“At a time when they know they have an agency full of acts of discrimination, with all kinds of lawsuits pending, it’s shameful that they are doing this.”

Many parts of the bill, which was debated late into the night in the Senate on Tuesday, would apply not just to state employees, but to all workers in the state.

It would require workers who claim discrimination in wrongful termination lawsuits to prove that they were fired specifically because of their race, religion, gender or other protected status. The current standard requires them to prove only that bias was a “contributing” factor. The bill also would lower the amount of punitive damages that could be awarded in an employment discrimination case.

Employees of the state of Missouri or its political subdivisions could no longer win punitive damages from their employers.

To its proponents, the bill simply would put the state in line with federal law, reduce frivolous lawsuits and ensure more timely and fair resolution for legitimate discrimination cases.

“If you act because of a discriminatory reason, you will have to pay,” said state Rep. Kevin Austin, a Springfield Republican sponsoring the bill in the House. “What this bill does is even the playing field. It doesn’t make it any easier for companies; it doesn’t make it any harder for plaintiffs who feel they’ve been discriminated against.”

But opponents say the bill would make it virtually impossible for victims of discrimination to get justice.

“This bill is a direct assault on every black person and every woman in this state,” said Sen. Kiki Curls, a Kansas City Democrat.

The situation in the state Department of Corrections gained widespread attention last year after The Pitch reported on prison workers’ claims of sexual harassment and racial discrimination by co-workers and retaliation by supervisors for speaking out.

During the first few months of 2016, juries ordered the state to pay more than $3 million in damages to two prison employees who alleged gender discrimination and harassment. Since 2012, the state has paid $4.5 million to settle discrimination lawsuits against the Corrections Department.

In announcing his pick to run the department, Gov. Eric Greitens said corrections officers “struggle in a culture of harassment and neglect, in a department with low morale and shockingly high turnover.” And the chairman of the Missouri House committee investigating the situation said complaints he has heard about prisons are “very disturbing.”

The discrimination lawsuits aren’t confined to the prison system.

Juries have ordered the state to pay more than $16 million in damages since 2014 related to discrimination and harassment lawsuits against various state agencies, including the departments of labor, public safety and revenue.

But it’s the allegations in the state prison system that have garnered the most attention from lawmakers.

Fueling some of those concerns is a report by a private attorney hired by the state to investigation allegations of discrimination, harassment and retaliation against an employee at the Kansas City Reentry Center.

The state paid Kansas City lawyer Ann Molloy $12,000 to look into the allegations, and then fought to keep her 19-page report secret. Greitens’ office and the Department of Corrections both refused to provide a copy despite a judge’s order that the report be unsealed. The Star obtained a copy through a third party.

According to the report, the female employee in question was called to testify in January 2016 in a co-worker’s discrimination lawsuit. She told the jury that she was regularly sexually harassed by her co-workers, and that three male co-workers in particular made comments that were vulgar, demeaning and sexually charged in the workplace, including calling her a “bitch,” “slut” and “whore.”

The conduct allegedly turned physical after one of the male co-workers pushed her over a table, running his hands against her breasts and asked her if she “likes hugs.”

“Witnesses generally support the allegations that” the three male employees “engaged in vulgar, harsh and sexual — and at times racially charged — communication in the workplace,” Molloy wrote. “There is sufficient witness testimony to substantiate that their conduct violated department policy.”

After returning to work, the employee says, she was warned by a prisoner to “watch her back” because word was being spread by her co-workers that she was a snitch. After her attorney contacted the Department of Corrections expressing fear for her safety, she was placed on paid administrative leave.

Graham, who represents the prison employee who was the focus of Molloy’s report, said the changes to state law envisioned by the bill “will only protect people who were deemed by juries to be racists, bigots, sexists and misogynists.”

Proponents of the bill say that sort of rhetoric is overblown. The current standard used in discrimination cases is far too low, Romine said, and makes it too easy for someone to sue an employer regardless of circumstances.

“All a person has to be is a protected class,” he said, “and they can bring a lawsuit. That’s extreme and it’s ridiculous.”

This story was originally published February 28, 2017 at 8:45 PM with the headline "Missouri bill would bar punitive damages for state employees in discrimination cases."