Limits on discrimination lawsuits draw support from business community

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JEFFERSON CITY - A top lobbyist for the Missouri Chamber of Commerce urged lawmakers to support limits on discrimination lawsuits against businesses Monday.

Richard AuBuchon, a lobbyist for the Missouri Chamber of Commerce, told the House Workforce Development Committee the current law discourages businesses because it has a lower standard for evidence.

“Companies are choosing to locate in other states, and I’m not going to tell you this is the only reason,” AuBuchon said. “But certainly it is a factor when companies look at the cost of doing business.”

The bill would raise the standard of review for discrimination lawsuits from a contributing factor to a motivating factor. It would also limit non-economic damages, restrict protections for whistleblowers and allow attorneys' fees to be awarded to the party that wins the case.

Gov. Jay Nixon vetoed similar legislation last session.

"(This bill) weakens Missouri's commitment to address discriminatory conduct and limits existing protections for whistleblowers in the workplace," Nixon wrote in his veto letter.

Bill sponsor Rep. Kevin Elmer, R-Nixa, said the changes would bring Missouri law in line with federal discrimination law, which requires the discrimination to be a motivating factor in the employer’s decision and limits non-economic damage awards based on the size of the employer.

He said the lower standard of review made discrimination lawsuits more costly.

“You see larger settlements because you see the threat of greater litigation and litigation is expensive,” Elmer said.

Jane Drummond, an attorney who works on discrimination lawsuits, agreed during her testimony in support of the bill.

“This bill is very important to level the playing field so that businesses are not subject to unfair and economically harmful conditions arising out of these cases,” Drummond said. “(The current law) turns very marginal cases into very expensive cases for employers.”

Tina Trickey, whose husband won an age discrimination lawsuit against an industrial parts distributor, opposed the bill because of the assumptions she said are made in it.

“You are assuming that all companies are going to do the right thing, and they don’t,” Trickey said. "(This law) does not protect the employees in the state of Missouri.”

She said there are already many obstacles to bringing a discrimination lawsuit against an employer.

Jonathan Berns, a St. Louis attorney, said the bill would make it easier for businesses to discriminate.

“It dramatically restricts the protections for people who have been discriminated against,” Berns said. “Why do we want to make it easier to discriminate?”

He said discrimination lawsuits were not as expensive for businesses as other types of lawsuits.

“It’s simply not that onerous of a burden on a business,” Berns said.

Berns also criticized the section of the law dealing with whistleblowers. The bill would make only those who report wrongdoing to the proper authorities eligible for protection and would also limit awards.

“This bill dramatically curtails the rights of whistleblowers,” Berns said. “This bill discourages and will have a chilling effect on those employees.”

Drummond said the bill simply expressed the current common law.

“I think this really just codifies what the existing law is,” Drummond said. “You have to report it to someone who can do something about.”

Some representatives of political subdivisions expressed concern over the changes to the law which may affect sovereign immunity. Currently, governmental entities are protected from such lawsuits because of that exemption.

Rep. Stephen Webber, D-Columbia, said he was concerned with the whistleblower changes because an employee could report to their supervisor and then would not be protected under the law.

“This seems like a corporate anti-snitching policy,” Webber said. “The corporations are saying, ‘If you talk, we’re going to get you.’”

A bill containing just the whistleblower provisions was introduced last session after Nixon vetoed the broader lawsuit protections, but failed to make headway before the session ended.

AuBuchon said the legislature should work with the governor so he does not veto the bill again.

“It’s incumbent on us to find some compromise language so we can put this issue to rest,” he said.