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Employment Discrimination May Be More Difficult To Prove

February 21, 2012

The Missouri House of Representatives and Senate each passed bills last week that would make it more difficult for plaintiffs to prove they were victims of employment discrimination. Both bills - SB 592 and HB 1219 - aim to bring Missouri law into line with federal civil rights law by requiring plaintiffs to prove that their protected trait was the motivating factor in an adverse employment action. In recent years, Missouri courts have interpreted the Missouri Human Rights Act to require that plaintiffs prove only that the trait was a contributing factor in the employer's decision to take adverse action against the employee.

Also in alignment with federal law, the bills would limit the amount of non-economic and punitive damages that employment discrimination plaintiffs may collect, based on the size of the employer. Non-economic damages (i.e., damages other than back pay and interest on back pay) would be capped at $50,000 for employers with between six and 50 employees; $100,000 for employers with between 101 and 200 employees; up to $200,000 for employers with between 201 and 500 employees; and $300,000 for employers with more than 500 employees. The bills also would eliminate individual supervisor liability in employment discrimination lawsuits.

In addition to changing the standard of proof in employment discrimination cases, the bills would erect statutory provisions to replace case law concerning employee whistleblower claims.

The House bill passed by a vote of 89-68, and the Senate bill passed by a vote of 25-8. Each bill now must be considered by the other chamber.

Governor Nixon vetoed similar legislation last year, and has stated that his position on the issues contained in the bills has not changed. To survive a veto, a bill must pass the Missouri Senate with at least 23 votes and the House with at least 109 votes.

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