Tort reform measure could have significant impact on Missouri Human Rights Act

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NAACP leader cut off during testimony

JEFFERSON CITY, Mo. – The Special Committee on Litigation Reform heard another major tort reform measure Monday, one which would rewrite the Missouri Human Rights Act.

The three bills, which will likely be rolled into one piece of legislation, offered by Reps. Kevin Austin, Joe Don McGaugh and Dean Plocher, will change the standard for discrimination lawsuits based on protected classes in the MHRA, like age, sex, religious belief, race or ethnicity.

While business groups like the Missouri Chamber of Commerce and the Associated Industries of Missouri supported the legislation for creating a more favorable legal environment, the bill had its fair share of detractors as well who feared the change could make it more difficult for those discriminated against to bring their cases to court.

Rep. Kevin Austin

Rep. Kevin Austin

The three present Democrats on the committee, especially Rep. Steven Roberts Jr., questioned the need for the bill as well as the statutory logistics of the legislation, questioning what standard the bill would set for discrimination lawsuits as well as fearing this act could close the courts off to consumers. Rep. Gina Mitten relayed her own experiences being discriminated against for her gender by a superior when she was a young lawyer, and her own fears she could have been fired if she brought it up with another member of management under the purview of the bill.

Democratic Rep. Mark Ellebracht relayed a story of a black high school friend filing a discrimination suit against a car dealership in Kansas City because other employees called him the N-word and “boy.” Ellebract said there needed to be punishments for bad actors.

“We don’t have knights, lords and fiefdoms… but I get to go and do righteous things on behalf of my clients,” Ellebract, a lawyer, said emotionally. “Sometimes that involves shutting people down that need to get shut down and when a friend of mine gets called the N-word by a car dealership, that place needs to get shut down.”

Austin agreed those discriminated against should have legal recourse, but he believes his bill still provides those protections while making the current legal environment more evenly distributed between plaintiffs who bring suits and defendants. The representative notes the bill would change Missouri’s current “contributing factor” standard with a “but for” standard. The current standard means in a discrimination suit, a plaintiff only needs to prove discrimination on race, age, gender, sex or another protected class. Under a “but for” standard, Austin says the discrimination has to be the particular cause for injury.

“If you act because of a discriminatory reason, you will have to pay. If you act for a legitimate reason, such as being late to work, then you will be held liable,” Austin said. “What this bill does, in my belief is even the playing field. It doesn’t make it any easier for companies, it doesn’t make it any harder for plaintiffs who feel they’ve been discriminated against.”

Joseph Sklansky, an assistant vice chancellor and associate general counsel at Washington University, did not testify on behalf of the university, but he agreed with Austin’s interpretation of the bill. He said after the “contributing factor” standard was recommended by an advisory counsel, it has caused the courts to deviate significantly from the language in statute that has been in place for nearly 50 years.

“Allegations trump evidence,” he said. “Proof is not required.”

However, dissidents believe changing the standard opens up employers to say a plaintiff was fired for truancy, absence, or some other reason, when a plaintiff says there was discrimination directed towards them in the workplace.

Chapel silenced by Lant

Among the dissident testifiers was Rod Chapel, the president of the Missouri NAACP. He argued the proposed legislation would work at the expense of average Missouri citizens by weakening Missouri’s discrimination laws.

“This bill is really just an employer’s Christmas tree that balances the normal civil rights protections that employees have against being harassed or discriminated against with the pocket books of the employers they want to make fatter. It’s just that simple,” he said.

The hearing got heated towards the end when committee chair Rep. Bill Lant cut off Chapel during testimony allegedly for speaking in a non-germane fashion when Chapel began speaking on the discriminatory effects he believed the bill could have. Mitten objected but Lant turned off Chapel’s microphone and ended his testimony prematurely.

Reaction from the left was strong. Mitten later released a statement saying Lant “engaged in unprofessional and racist behavior.”

“Jim Crow is alive and well in Missouri, and Rep. Lant just proved it,” she added.

Former Rep. and chair of Empower Missouri Jeanette Mott Oxford was present at the hearing and denounced Lant’s actions during the hearing in a joint statement with PROMO Missouri, the state’s foremost LGBT rights advocacy group.

“I was deeply disappointed to see Chairman Lant silence President Chapel shortly after he began testimony on three bills tonight,” Oxford said. “Many believe House Bills 552, 676 and 550, as well as Senate Bill 43, weaken protections against discrimination in the workplace, so the president of the NAACP certainly should not have been cut off as he stated the position of his organization on these bills.”

Chapel, Oxford and Steph Perkins of PROMO announced they would hold a press conference regarding the incident Tuesday morning.

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