The employees' decade: recent developments under the MHRA and the employers' potential rebound.

• Author: Martin, Dane C.
• Position: Missouri Human Rights Act

1. INTRODUCTION

   The law of unintended consequences provides that any action by people or the government will have effects that are unanticipated and unintended. (1) Yet, a failure to recognize this principle is generally not the problem. The problem is the impossibility of determining the scope of those effects from the outset--how much will those unintended effects adversely impact the actual intended effects of the statute. This concept undoubtedly lingers in the minds of legislatures during the drafting of a bill and the enactment of law. How will the court interpret these provisions? How will that interpretation impact businesses in Missouri? In light of these hard, if not impossible, questions, it is likely the long-term reaction and adaptation to those inevitable unintended effects that matters the most.

   Over the past decade, the Missouri Human Rights Act (MHRA) has been extensively subjected to the law of unintended consequences. Federal and state courts have disagreed about the Act's application, and its provisions have even clashed with Missouri's constitution. (2) The effects of these discrepancies have greatly expanded the protections afforded to employees as well as employees' ability to recover for actions invading those protections. This resulting expansion has exponentially increased the exposure of employers to liability, thus increasing the cost of doing business in Missouri. This, of course, is logically and inevitably passed to customers. (3) One could argue, however, that expense is not a factor in the Missouri legislature's efforts to reduce discrimination. But, since it ultimately appears that no amount of workplace training and selective hiring can fully eliminate the presence of workplace discrimination, properly balancing the competing interests of the employer in doing business with the public policy of reducing discrimination becomes exceedingly significant.

   This Note will identify the considerable changes and varying interpretations of the MHRA over the last decade, analyze the optimal balance between the competing, important interests, and determine any potential need for amendment, including consideration of the various proposals currently before the legislature. Part II thus analyzes the four major areas of difficulty in the adjudication of MHRA claims in the last decade, including jury trials, available damages, the burden of proof, and individual liability. Next, Part III recognizes the most recent developments under the MHRA. And lastly, Part IV involves a two-part discussion beginning with the policy and effect behind each area of difficulty, and it concludes with an analysis of the Act as a whole, including its place among other relevant discrimination statutes such as Title VII.

2. LEGAL BACKGROUND

   In 1961, the Missouri General Assembly enacted the MHRA with the general purpose of providing Missouri employees with a statutory right of action against employers concerning various forms of workplace discrimination. (4) Antedating the current prevailing federal discrimination statutory regime by three years, the MHRA is not merely a state-level counterpart to Title VII of the Civil Rights Act of 1964 (Title VII). (5) The two statutes have been described as "coextensive, but not identical," and the MHRA as "broader than Title VII, and in other ways ... more restrictive." (6) However, because lower Missouri courts read Missouri law in conjunction with consistent federal employment discrimination case law during the interpretation and application of the Act, there is much overlap and similarity between the two. (7) Regardless of any such federal influence, the interpretive process always begins with an analysis of the Act itself.

   1. The Relevant Provisions of the MHRA

      Section 213.055.1 of the MHRA prohibits an employer from discriminating against an individual on the basis of "race, color, religion, national origin, sex, ancestry, age or disability." (8) This protection encompasses workplace actions concerning discharge, refusal to hire, compensation, employee or applicant classification, and any terms, conditions, or privileges of employment. (9) A separate provision also makes it unlawful to "aid, abet, incite, compel, or coerce the commission" of the prohibited acts and forbids retaliation or discrimination against those who oppose any proscribed actions or file complaints under the Act. (10) As with many statutes, the MHRA contains terms of art which are separately defined within the Act. (11)

      By the clear language of the statute, liability for taking such actions under section 213.055.1 can be imposed on those considered to be an "employer." (12) The provision specifically defines an "employer" as "any person employing six or more persons within the state, and any person directly acting in the interest of an employer." (13) This definition includes the State of Missouri and any included civil or political subdivision, but expressly excludes religious or sectarian-owned and -operated corporations and associations. (14) Later identified within the definition of employer, a "person" is defined as "one or more individuals, corporations, partnerships, associations, organizations, ... [and] other organized groups of persons." (15)

      Beyond the substantive provisions granting employees statutory rights, the Act also has many procedural aspects. The basic framework of adjudicating claims is as follows. Upon a believed violation of the Act by an employer's actions, an employee must first file a verified complaint with the Missouri Commission on Human Rights (the Commission) within 180 days in order to pursue relief. (16) The employee is then presented with two possible options: (1) the claim can either be determined through the administrative process available through the Commission (17) or (2) the employee can wait 180 days after filing the complaint and request a right-to-sue letter, which is granted so long as a determination by the Commission is still pending. (18) If the employee chooses the latter route, the aggrieved employee has ninety days to bring suit under the Act against the relevant employer(s). (19) Reaching state or federal court, however, gives rise to a plethora of hurdles and considerations for the plaintiff-employee.

   2. Procedural Aspects: Jury Trial and Damages

      For the vast majority of the MHRA's existence, any claim brought under the Act was necessarily decided by bench trial while in state court; no jury trial was permitted. (20) The state court rule remained regardless of the fact that the right to a jury trial in federal court is wholly a matter of procedural law under the Erie doctrine and, therefore, federal law concerning a jury controlled in diversity actions or otherwise. (21) This disparity resulted in a common practice of employment attorneys bringing simultaneous actions under both the MHRA and an applicable federal discrimination act--such as Title VII, (22) the Americans with Disabilities Act of 1990, (23) or the Age Discrimination in Employment Act of 1967. (24) The federal question presented would provide supplemental jurisdiction for the MHRA action, (25) permitting initiation in or removal to federal court due to the inherent "same case or controversy" resulting from the identical instance of alleged discriminatory conduct. (26) of course, an out-of-state defendant could also obtain jurisdiction through diversity. (27) Since 2003, many of these procedural strategies are now unnecessary to accomplish the goals desired by the plaintiff.

      In 2003, the Supreme Court of Missouri decided State ex rel. Diehl v. O'Malley, (28) which drastically altered the adjudication of MHRA actions in Missouri courts. In Diehl, the plaintiff filed a charge against NASD Regulation, Inc. for age and sex discrimination as well as retaliation for eventual termination due to those complaints. (29) After the 180-day waiting period, the plaintiff Diehl requested a "right to sue letter" and brought action in state court seeking a jury trial. (30) Following clear precedent, Judge O'Malley overruled the motion. (31) In response, Diehl sought a writ of prohibition, which the Supreme Court of Missouri granted and made absolute, requiring trial of the case before a jury. (32)

      Before granting the writ, the court undertook an extensive historical analysis concerning the right to a jury trial in actions for damages. (33) Looking to the Missouri Constitution, the court interpreted the meaning of the constitutional right to a jury trial "as heretofore enjoyed." (34) Once the point of reference for the constitution was deemed to be 1820--the date the Missouri Constitution was adopted--the sole issue centered on the extent of the right to a jury trial at that time. (35) Because the right was available for all actions seeking pecuniary damages in 1820, the same right was held to be constitutionally mandated for all claims that can be analogized to claims properly before a court at common law (distinguished from those in equity) in 1820. (36) Accordingly, the court held that claims under the MHRA for monetary damages provide a constitutional right to a jury trial. (37)

      The Diehl decision, while encompassing the issue of the right to a jury trial for monetary damages, left many issues unanswered. one such issue concerned whether a plaintiff could seek equitable relief in the same action as that seeking legal relief before a jury. In State ex rel. Leonardi v. Sherry, the Supreme Court of Missouri resolved the issue in the affirmative. (38) The court held that legal claims could be tried by jury while the court simultaneously determined those in equity, unless the circumstances required otherwise. (39)

      Upon an exercise of the right to a jury trial, the full array of damages available under the Act (40) is available for jury consideration. Unlike the capped damages for discrimination under Title VII, (41) the MHRA permits the recovery of compensatory and punitive damages, without any...