Senate Bill 43 Update

Legislation to weaken Missouri’s zero tolerance ban against discrimination on the basis of religion, age, gender, race, disability, or national origin and provide civil immunity to supervisors who harass their subordinates remains on the House calendar. Over the past week, some supporters of the bill have argued that courts would not interpret the plain language of SB 43 to also eliminate claims for breach of contract and trade secrets between employers and employees.

Those who do not know the past are condemned to repeat it. In 2005, the legislature passed a bill to reform Missouri’s worker’s compensation laws. At the time, some groups warned that it would have an unintended consequence of taking some cases out of the work comp system – to the detriment of Missouri businesses. Their warnings were ignored.

A few years later, Missouri courts ruled that the plain language of the new legislation moved claims for “occupational disease” out of the worker’s compensation system and into regular courts. One such case is called State ex. rel. KCP&L v. Cook, 353 S.W.3d 14 (2011). Three years and tens of millions of dollars in court judgments and settlements against Missouri businesses later, the legislature finally found a way to fix the unintended drafting error that it made in 2005.

Just last year, the Missouri Supreme Court overturned a felony stealing conviction under a plain reading of a statute that contained an unintended error. In State v. Bazell, the Court explained that it “must give effect to the plain and ordinary meaning of the statutory language and, when the meaning is clear, it must not employ canons of construction to achieve a desired result.” For a court to do anything else would be judicial activism. Details matter – and courts interpret statutes by the plain meaning of their words. Passing Senate Bill 43 as its currently drafted isn’t just bad public policy because it weakens standards on religious freedom and discrimination. It’s also bad for Missouri businesses that may seek to enforce employment contracts and protect trade secrets.