Bigots of Missouri, rejoice! It just got a little bit easier for you to be a jerk at work with fewer consequences. This is thanks to SB 43, a law that state Sen. Gary Romine (R-Farmington) sponsored, his fellow Republicans enacted, and Republican Gov. Eric Greitens signed into law in June.
Let me explain.
For years in Missouri, if you were the victim of unlawful discrimination at work, reported it to human resources, and were rewarded with a pink slip, you could file a lawsuit and pretty much rest assured your case would survive summary judgment and at least make it to trial. And many employers will settle rather than risk a punitive damages judgment in court.
In theory, Missourians could count on some protection under the Missouri Human Rights Act (MHRA), which prohibits discrimination on the basis of race, color, religion, national origin, ancestry, sex, disability or familial status in employment, housing, or public accommodations. Combined with a Missouri Supreme Court decision that summary judgment should rarely be used in employment cases, the MHRA made it easier for plaintiffs who sue for discrimination to get their case before a jury. (For a brief explanation of how summary judgment motions work, read my explainer here.)
But those halcyon days are over, because Sen. Gary Romine—who can’t seem to keep the managers at his own business from calling his employees racial slurs and is being sued for racial discrimination as a result—and his cohorts have passed a law, SB 43, which makes it easier for employers to escape liability for illegal discrimination. And when employers can’t escape liability, SB 43 makes it a hell of a lot less expensive for them if they’re forced to pony up money for damages.
Overall, SB 43 fundamentally changes the MHRA, making it more business-friendly and less victim-friendly.
A little history is in order.
Before 2007, Missouri courts applied something called the “McDonnell Douglas burden-shifting analysis” in employment cases when trying to decide whether to grant summary judgment in favor of the employer.
The analysis comes from a U.S. Supreme Court case, McDonnell Douglas Corp v. Green. It says that a plaintiff must establish a prima facie case for discrimination; in other words, the plaintiff must lay out all the elements and have evidence to back it up. After a plaintiff makes her case, the burden shifts to the employer to give a nondiscriminatory reason for firing the plaintiff. The burden then shifts back to the plaintiff to demonstrate that discrimination was a “motivating factor” in their employer firing them and that the reason the employer gave is pre-textual—in other words, bullshit. If the employee doesn’t have any evidence, then a court will grant summary judgment in favor of the employer.
So let’s say in 2005, Diana Prince, who has been diligently working at a Wayne Enterprises satellite office in Kansas City, Missouri, for three years, is getting sick and tired of Bruce Wayne hitting on her whenever he breezes into town. (He’s usually at headquarters in Gotham, but sometimes he likes to make a trip to Kansas City. He’s a barbecue enthusiast, you see.)
She reports Bruce’s behavior to Alfred—who is no longer Wayne’s butler, but the head of Human Resources—and after word gets back to Bruce, he fires her.
Diana decides to file a lawsuit, naming Bruce Wayne and Wayne Enterprises as defendants. Eventually the defendants file a summary judgment motion with the court. If Diana doesn’t have any evidence that the decision to fire her was motivated by discrimination, then she’s out of luck. The court will grant summary judgment to Bruce Wayne and Wayne Enterprises, and that’s the end of Diana’s lawsuit.
If Diana had filed her lawsuit after 2007, she might have gotten a better outcome. That’s because in 2007, the Missouri Supreme Court changed the standard for employment cases, making it easier for plaintiffs to survive summary judgment and get their case before a jury.
That year in Daugherty v. the City of Maryland Heights, the Missouri Supreme Court said that in order to survive summary judgment, the employee need only demonstrate that the discrimination was a “contributing factor” in the employer’s decision. Courts would no longer use the McDonnell Douglas “motivating factor” test.
The difference between “motivating factor” and “contributing factor” may seem like semantics, but it’s actually significant.
“Contributing factor” is a lower burden that virtually ensures that every plaintiff will survive summary judgment and be able to take their case to trial for a jury to decide whether the employer’s actions were illegal discrimination or not.
And that was the point: “Summary judgment should seldom be used in employment discrimination cases because such cases are inherently fact-based,” the Missouri Supreme Court said in Daughtery.
In other words, the Missouri Supreme Court ruled that because such cases typically involve factual disputes, they should be put before a jury to sort out.
But that didn’t sit well with Republicans and the business interests that support them, such as the Missouri Chamber of Commerce. They were concerned about frivolous discrimination lawsuits, according to the Missouri Times.
For years, Republicans tried to pass a law that would make the MHRA a little more toothless. In 2011, Republicans even succeeded in passing a bill almost identical to SB 43. But then-Gov. Jay Nixon (D) vetoed it.
After years of failed Republican efforts, Sen. Romine finally succeeded.
SB 43 overrules Daugherty and its “contributing factor” test and restores the McDonnell Douglas burden-shifting analysis and the “motivating factor” test. It also strips plaintiffs of the right to sue the individual responsible for the discrimination by shielding the offending employee from liability. (The Missouri Supreme Court in 2006 ruled in a case called Cooper v. Albacore Holdings, Inc., that the MHRA imposes individual liability for discriminatory conduct. SB 43 overrules that.)
This could benefit Romine, who is currently facing a lawsuit that a former Black employee, Tracy Ranson, filed against him and his company alleging that a manager at one of Romine’s Show-Me Rent-to-Own stores repeatedly called Ranson ethnic slurs, that the company had a policy of not renting to Black residents, and that Romine knew about it and did nothing.
SB 43 won’t make a difference in Ranson’s case. But if an employee other than Tracy Ranson, for example, decides to sue, that employee will have a more difficult row to hoe. That second employee will have a heavier burden of proving that she was subjected to illegal discrimination and even if she can prove it, she can’t sue the person directly responsible for the discriminatory behavior. She can only sue the company. Ranson, for example, is suing Show-Me-Rent-to-Own and Romine. That second employee won’t be able to sue Romine individually. She’ll only be able to sue the company.
Romine is obviously a swell guy. After the Missouri NAACP announced a travel advisory warning Black people to stay the hell away from Missouri—partly because of the legislation, but mostly because of the police brutality and overpolicing of Black people in that state—Romine claimed that the law had nothing to do with racial discrimination, saying that the NAACP is “trying to stir up trouble” and fuel the racial tension that’s been bubbling over before and since the civil unrest in Ferguson in 2014, according to the Daily Journal Online. The fact that Romine is literally battling a racial discrimination lawsuit, the very kind that his pet law might eradicate entirely, seems not to faze him.
As a representative of the people of Missouri, Romine should be more concerned about those who are losing their jobs due to illegal discrimination than he is about the businesses who may now find it easier to fire a “naggy” employee who doesn’t appreciate that her boss keeps swatting her on the ass or calling her ethnic slurs.
Far too often when it comes between people with power in the workplace and the worker bee, the worker bee gets the short end of the stick. “Sure, Ken in the corner office is handsy, but he’s such a rainmaker. We can’t find another him. We can find another you.”
Just another way that workers in Missouri are getting screwed in a political system that’s imbued with corruption and favors bigots.