JEFFERSON CITY, Mo. — The fight to modify the Missouri Human Rights Act to protect the LGBT community is creating some strange bedfellows in the legislature. Missouri’s business lobby is walking a tightrope position on a bill that supporters say should be a no-brainer.
Under current Missouri law, an employer can’t terminate an employee on the basis of race, color, religion, national origin, ancestry, sex, disability or age. Such a termination would not constitute just cause, an employee would retain the right to collect unemployment and would also have legal recourse. The law does not extend to individuals discriminated against on the basis of gender identity or sexual orientation.
“Most people don’t realize that in this state not only can you fire a gay person simply for being gay, but that termination is actually considered ‘just cause’ and that employee isn’t even entitled to unemployment,” Rep. Kevin Engler, R-Farmington, said. “That’s just insane and most people don’t even realize it’s the law.”
Gov. Jay Nixon voiced support for changing the law in his State of the State address and bills have been filed in both the House and Senate. While Sen. Jolie Justus, an openly gay Democrat whose district covers swaths of northwestern Missouri, filed the primary senate bill. Gay rights advocates may recognize Engler’s name from a different fight – he sponsored language that ultimately led to Missouri banning gay marriage in the state. While Engler still doesn’t believe the state should recognize gay marriage, he says allowing legal discrimination is another matter.
The hearing for Engler’s bill drew support from the usual players in LGBT advocacy but opposition from the state’s largest business lobbyists. Associated Industries of Missouri and the Missouri Chamber of Commerce both took positions against the bill, while carefully stating that they did not support discrimination against the LGBT community.
AIM President Ray McCarty said his organization was, in general, against creating any new protected class of employee, regardless of what the class may be. He was also quick to point out that many larger employers in the state already have company policies prohibiting discrimination.
“We point out that this does invite more lawsuits,” McCarty said. “And we are always going to come out against something that opens our members up to lawsuits, or creates new protected classes.”
McCarty said the bill also deceptively uses the “motivating factor” standard while codifying “contributing factor” language, calling it a “wolf in sheep’s clothing.” A motivating factor is a higher burden of proof and one the business community supports.
Missouri case law largely shows that Missouri has a contributing factor standard for discrimination – a lower burden of proof for a terminated employee. The lower standard, businesses say, leads to more lawsuits.
Lawmakers have tried unsuccessfully to change Missouri to a motivating factor through state statute. Such a move might make adding LGBT language to the MHRA more palatable for business. Amending the bill to include more items on the business-lobby wish list is a way to make everybody happy and pass a bill, Engler says.
“That’s something we would have to look at very closely to see if we could accept it,” McCarty said. “A deal along those lines is something I’d be willing to look at, but that’s as far as I can say without really getting into the specifics.”
Missouri Chamber general counsel Jay Atkins echoed some of McCarty’s sentiments, saying that a compromise was “always a possibility,” despite testifying against the bill.
“Our position is that we are opposed to anything that opens up Missouri businesses to more liability,” Atkins said. “It’s a difficult issue, because really it is two different policy questions. The first question is how do we protect and promote people and the other is how do we create a legally friendly and safe environment for business? But they are separate policy questions that have been tied together here.”
Atkins said the Chamber hadn’t been involved in any compromise discussions with Engler but such a compromise also hadn’t been ruled out. He also noted that the Chamber encourages individual businesses to adopt policies protecting LGBT employees.
“This is an issue that is inherently heated,” Atkins said. “So it’s a very difficult debate to be had, but as a matter of public policy, both questions are important.”
Engler has been vocal about his desire to use his LGBT language as a vehicle to promote other business-friendly legislation. As lawmakers struggle to pass a law creating a workers compensation database with the threat of a veto from Nixon, Engler says combining the efforts would be a “display in compromise.”
“We used to do this all the time where we know we aren’t all going to get everything but we find out what we are willing to swallow in exchange for what we want,” Engler said.
Collin Reischman was the Managing Editor for The Missouri Times, and a graduate of Webster University with a Bachelor of Arts in Journalism.
