Bryan Cave attorney, labor expert, and Second Vice Chairman of the Board of Directors of Associated Industries of Missouri, Jerry M. Hunter, appeared today on the Charlie Brennan show on KMOX to discuss SB 43 and the recent NAACP travel advisory based, at least in part, on the passage of that bill.
You may listen to the podcast on the KMOX website by following this link.
Mr. Hunter emphasized the standard for proving discrimination in employment and housing cases contained in SB 43 is the “motivating factor”- the same standard observed in federal courts in Missouri and the same standard used in state courts from 1984 to 2007. That year, the Missouri Supreme Court changed the standard, without legislative authority, to a “contributing factor” standard. This essentially shifts the burden of proof to the employer. He further explained some cases under federal law observe an even higher burden of proof: the “but for” standard: “But for” discrimination, the action at issue would not have been taken.
He pointed out the Missouri Human Rights Act deals only with employment and housing and has nothing to do with travel. He also stated the Equal Employment Opportunity Commission (EEOC) had notified Missouri that the new law is acceptable under federal standards.
When asked about the standard used in other states, Hunter mentioned two states in particular: California, which observes a “substantial motivating factor” standard; and Maryland, the headquarters for the NAACP, which observes the “motivating factor” standard.
Mr. Hunter stated he had been interviewed by reporters for St. Louis Public Radio and CBS News (see my other story for our experience with CBS News). Neither presented the employer side of the argument, contained in his comments, to their listeners and viewers.
Associated Industries of Missouri applauds Charlie Brennan and KMOX for allowing Jerry Hunter to tell the “rest of the story.”