SB 43 Weakens Standards Against Discrimination and Pre-empts Pro-Life Protections

Should Missouri maintain its current zero tolerance policy against discrimination on the basis of religion, age, gender, race, or nationality? Should an employee who is sexually harassed by a supervisor be able to hold her harasser personally responsible? Should Missouri law protect state employees’ jobs who report their reasonable beliefs about waste of taxpayer funds or illegal activity in state government to elected officials? These are a few of the questions Senate Bill 43 raises, which would dramatically change the Missouri Human Rights Act.

The first change concerns the level of discrimination that Missouri law permits. Currently, Missouri has the strongest law in the country. Our zero-tolerance policy prohibits discriminatory actions against a person where religion, age, gender, race, or nationality is a contributing factor to the decision. Under Senate Bill 43, the person discriminated against must prove that religion, age, gender, race, or nationality was the motivating factor. In practice, this means the person who has been discriminated against will need smoking gun evidence to prevail in many cases.

I oppose this change. If SB 43 becomes law, Missouri would become the first state, I believe in in American history, to backslide on legal protections for people of faith, age, gender, race, and nationality. Even so, there are far worse parts of SB 43.

For example, in December, The Pitch magazine reported on a series of lawsuits involving brazen sexual harassment in the Department of Corrections, including “repeated and overt sexual comments, groping, and pressure from supervisors and co-workers to have sex.” When those advances were denied or reported to higher authorities, “retaliation and even physical assaults sometimes followed.”

In response, Gov. Greitens brought in a new leader of the Department, noting, “Our corrections officers struggle in a culture of harassment and neglect” and have “low morale and shockingly high turnover.”

Under current law, a supervisor who gropes and pressures an employee to have sex can be held personally responsible for their actions. But SB 43 grants immunity to the sexually harassing supervisor. SB 43 tosses the tough talk about fixing “a culture of harassment” aside and replaces it with free passes for harassers. Not surprisingly, this would make Missouri an outlier. Of the 44 states with anti-discrimination statutes, only three grant such immunity, and none do so explicitly in their state statutes.[1] No ”culture of harassment” will ever be changed by granting legal immunity to harassers.

The next embarrassing part of SB 43 is its shocking breadth. On page 12 of the bill, it declares, “This chapter, in addition to chapter 285 and chapter 287, shall provide the exclusive remedy for any and all claims for injury or damages arising out of an employment relationship.” Chapter 285 contains protections for employee retirement plans, and Chapter 287 contains workers’ compensation laws.

So what other types of claims for injury or damages arise out of an employment relationship? Here’s the list I could think of: breach of contract – including an employee’s violation of a non-compete agreement and an employer’s failure to pay agreed wages to an employee, tortious interference with a business relationship – where an employee takes actions detrimental to their employer, misappropriation of trade secrets – where an employee steals confidential business information of their employer.

The bill’s proponents argue that courts will not interpret the bill this way. This is a convenient conclusion, but unlikely since courts are bound by the plain language where there’s no ambiguity. It says that it is “the exclusive remedy” for “any and all claims … arising out of an employment relationship.” All of the above are claims that arise out of an employment relationship.

Proponents may also argue that eliminating these causes-of-action would be unconstitutional for common law claims, and they would be correct. But even if a court ignores the plain language of SB 43 as it relates to these common law claims, there are still other claims that arise “out of an employment relationship” that are not common law.

For example, Section 197.032 of Missouri law prohibits employment discrimination against medical professionals and any other person who refuses “to undergo an abortion” or “to advise, consent to, assist in or perform an abortion.” Because SB 43 specifically lists statutory claims which survive its passage, and 197.032 is not included in the surviving list, a plain reading of the bill eliminates this important pro-life protection.

Chapter 168 of the Missouri Revised Statutes creates tenure rules for teachers around the state that, if violated, would ultimately lead to a claim arising out of an employment relationship. Because SB 43 specifically makes exceptions for claims arising out of Chapters 285 and 287, a plain reading of the statute should lead a court to dismiss any purported claim arising out of an employment relationship under Chapter 168.

Section 290.110 requires employers to pay unpaid wages of a discharged employee, and creates a cause of action if they cheat those who have been discharged. Section 290.130 creates a statutory cause of action for employees for wrongful discharge in breach of contract. Section 290.527 creates a cause of action to enforce minimum wage requirements. Section 294.121 creates a cause of action to enforce child labor laws.

In my seven years in the legislature, this may be the most poorly drafted section of a bill that I’ve ever seen. But courts don’t get to re-write statues. Instead, they interpret statutes by their plain language, not by guessing at what legislative proponents might have actually meant. To do anything else would be judicial activism. And, by its plain language, Senate Bill 43 pre-empts all of these statutory causes of action.

Senate Bill 43 currently sits on the House calendar ready for action sending it to the Governor. Unfortunately, this is not the complete list of problems with the bill. I will cover more in next week’s column.

[1] The six states without anti-discrimination statutes include Oklahoma, Wisconsin, South Carolina, Alabama, Georgia, and Mississippi. The three that grant immunity to harassers despite a state statute are Delaware, Louisiana, and Nevada – but those have been by court decision.