January 27 – The Missouri Senate adopted one amendment to the Employment Law Reform bill and rejected several others in debate Wednesday evening. You will recall from previous blog articles that this bill would change the standard to prove discrimination from the current “contributing factor” to a “motivating factor” standard, meaning the employer took the action because of the protected criterion of the employee. For example, plaintiff’s attorneys currently can claim the employer obviously knew the employee was female and that fact must have played at least 1/1000 of a percent in the decision of the employer to take action against the employee. The employer is left trying to defend themselves that the fact the employee was a woman did not enter into the decision to dismiss the employee, but it is very hard to prove in court with this low standard of proof. Our bill would use the federal standard for such cases, requiring the plaintiff to prove the employer was motivated by discrimination when dismissing or taking other action against the employee.
The first amendment, proposed by Sen. Victor Callahan (D-11), would have excluded age discrimination cases from the change to “motivating factor”. In effect, this change would have meant that plaintiffs alleging age discrimination would continue to enjoy the lower standard of proving age was a “contributing factor” in the employer’s decision to dismiss the employee – a much lower standard than is required under the federal law. The amendment was defeated on a 8-25 vote that fell along party lines, with Republicans opposing the amendment and Democrats supporting the amendment.
A substitute amendment for the second amendment (which we will examine in a moment) would have removed the “motivating factor” language altogether, essentially defeating the purpose of the bill. That substitute amendment, proposed by Sen. Jolie Justus (D-10), was defeated on a voice vote.
The Senate adopted Senate Amendment 2, sponsored by Sen. Bob Dixon (R-30). The amendment would exclude cases alleging “disparate impact” from the change to the “motivating factor” standard. A “disparate impact” violation occurs when an employer takes an action or adopts a policy that appears to be neutral but which causes a substantial adverse impact on a group that is protected under the discrimination laws. The employer that is accused of “disparate impact” must show that the action or policy served a legitimate business goal of the employer and was not intended to be discriminatory. It is our understanding that in these cases, the case law already places the burden of proof on the plaintiff to produce evidence that proves the employer’s practice or action was not in furtherance of their legitimate business goals, so this amendment does not appear to negatively impact employers. The amendment was adopted on a unanimous voice vote.
Before wrapping up debate on the bill, Sen. Lager offered Senate Amendment 3 which clarifies that the damage caps in the bill would not apply to housing discrimination cases – a point that opponents had claimed would have caused the bill to be noncompliant with federal law. Sen. Lager’s amendment was pending when the Senate ended debate this week on the bill.
More action on the bill is expected next week. You may recall Governor Jay Nixon vetoed similar legislation last year. It is our hope we can pass the bill and that the Governor will either sign the bill, or we will succeed in obtaining the necessary votes to override his veto this year. We will keep you posted of developments.
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