Bill Text: MO HB1488 | 2010 | Regular Session | Introduced
Bill Title: Changes the laws regarding unlawful discriminatory practices in employment as they relate to the Missouri Human Rights Law and the Workers' Compensation Law
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-02-11 - Refer: Spec Stand Com on Workforce Dev & Workplace Safety(H) [HB1488 Detail]
Download: Missouri-2010-HB1488-Introduced.html
SECOND REGULAR SESSION
95TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES JONES (89) (Sponsor), FUNDERBURK, DIXON, GRISAMORE, COX AND SCHIEFFER (Co-sponsors).
3326L.01I D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 213.010, 213.070, 213.101, 213.111, and 287.780, RSMo, and to enact in lieu thereof five new sections relating to unlawful discriminatory practices in employment.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 213.010, 213.070, 213.101, 213.111, and 287.780, RSMo, are repealed and five new sections enacted in lieu thereof, to be known as sections 213.010, 213.070, 213.101, 213.111, and 287.780, to read as follows:
213.010. As used in this chapter, the following terms shall mean:
(1) "Age", an age of forty or more years but less than seventy years, except that it shall not be an unlawful employment practice for an employer to require the compulsory retirement of any person who has attained the age of sixty-five and who, for the two-year period immediately before retirement, is employed in a bona fide executive or high policy-making position, if such person is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit sharing, savings or deferred compensation plan, or any combination of such plans, of the employer, which equals, in the aggregate, at least forty-four thousand dollars;
(2) "Because of" or "because", as it relates to a decision or action, the protected criterion was the motivating factor; provided however, where the decision or action was allegedly premised upon age, "because of" or "because", as it relates to a decision or action, means the decision or action would not have occurred but for age;
(3) "Commission", the Missouri commission on human rights;
[(3)] (4) "Complainant", a person who has filed a complaint with the commission alleging that another person has engaged in a prohibited discriminatory practice;
[(4)] (5) "Disability", a physical or mental impairment which substantially limits one or more of a person's major life activities, being regarded as having such an impairment, or a record of having such an impairment, which with or without reasonable accommodation does not interfere with performing the job, utilizing the place of public accommodation, or occupying the dwelling in question. For purposes of this chapter, the term "disability" does not include current, illegal use of or addiction to a controlled substance as such term is defined by section 195.010, RSMo; however, a person may be considered to have a disability if that person:
(a) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of, and is not currently addicted to, a controlled substance or has otherwise been rehabilitated successfully and is no longer engaging in such use and is not currently addicted;
(b) Is participating in a supervised rehabilitation program and is no longer engaging in illegal use of controlled substances; or
(c) Is erroneously regarded as currently illegally using, or being addicted to, a controlled substance;
[(5)] (6) "Discrimination", any unfair treatment based on race, color, religion, national origin, ancestry, sex, age as it relates to employment, disability, or familial status as it relates to housing;
[(6)] (7) "Dwelling", any building, structure or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure or portion thereof;
[(7)] (8) "Employer" [includes] , a person engaged in an industry affecting commerce who has six or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and shall include the state, or any political or civil subdivision thereof, or any person employing six or more persons within the state, [and any person directly acting in the interest of an employer, but does not include corporations and associations owned and operated by religious or sectarian groups] . Employer shall not include the United States, a corporation wholly owned by the government of the United States, an individual employed by an employer, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service, as defined in 5 U.S.C. Section 2101, or a bona fide private membership club (other than a labor organization) which is exempt from taxation under 26 U.S.C. Section 501(c), and shall not include corporations and associations owned and operated by religious or sectarian groups;
[(8)] (9) "Employment agency" includes any person or agency, public or private, regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes any person acting in the interest of such a person;
[(9)] (10) "Executive director", the executive director of the Missouri commission on human rights;
[(10)] (11) "Familial status", one or more individuals who have not attained the age of eighteen years being domiciled with:
(a) A parent or another person having legal custody of such individual; or
(b) The designee of such parent or other person having such custody, with the written permission of such parent or other person. The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of eighteen years;
[(11)] (12) "Human rights fund", a fund established to receive civil penalties as required by federal regulations and as set forth by subdivision (2) of subsection 11 of section 213.075, and which will be disbursed to offset additional expenses related to compliance with the Department of Housing and Urban Development regulations;
[(12)] (13) "Labor organization" includes any organization which exists for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or for other mutual aid or protection in relation to employment;
[(13)] (14) "Local commissions", any commission or agency established prior to August 13, 1986, by an ordinance or order adopted by the governing body of any city, constitutional charter city, town, village, or county;
[(14)] (15) "Person" includes one or more individuals, corporations, partnerships, associations, organizations, labor organizations, legal representatives, mutual companies, joint stock companies, trusts, trustees, trustees in bankruptcy, receivers, fiduciaries, or other organized groups of persons;
[(15)] (16) "Places of public accommodation", all places or businesses offering or holding out to the general public, goods, services, privileges, facilities, advantages or accommodations for the peace, comfort, health, welfare and safety of the general public or such public places providing food, shelter, recreation and amusement, including, but not limited to:
(a) Any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
(b) Any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment;
(c) Any gasoline station, including all facilities located on the premises of such gasoline station and made available to the patrons thereof;
(d) Any motion picture house, theater, concert hall, sports arena, stadium, or other place of exhibition or entertainment;
(e) Any public facility owned, operated, or managed by or on behalf of this state or any agency or subdivision thereof, or any public corporation; and any such facility supported in whole or in part by public funds;
(f) Any establishment which is physically located within the premises of any establishment otherwise covered by this section or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment;
[(16)] (17) "Rent" includes to lease, to sublease, to let and otherwise to grant for consideration the right to occupy premises not owned by the occupant;
[(17)] (18) "Respondent", a person who is alleged to have engaged in a prohibited discriminatory practice in a complaint filed with the commission;
[(18)] (19) "Unlawful discriminatory practice", any act that is unlawful under this chapter.
213.070. 1. It shall be an unlawful discriminatory practice:
(1) To aid, abet, incite, compel, or coerce the commission of acts prohibited under this chapter or to attempt to do so;
(2) To retaliate or discriminate in any manner against any other person because such person has opposed any practice prohibited by this chapter or because such person has filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding or hearing conducted pursuant to this chapter;
(3) For the state or any political subdivision of this state to discriminate on the basis of race, color, religion, national origin, sex, ancestry, age, as it relates to employment, disability, or familial status as it relates to housing; or
(4) To discriminate in any manner against any other person because of such person's association with any person protected by this chapter.
2. This chapter shall provide the exclusive remedy for any and all unlawful employment practices articulated herein and hereby abrogates any common law causes of action not specifically articulated herein.
213.101. 1. The provisions of this chapter shall be construed to accomplish the purposes thereof and any law inconsistent with any provision of this chapter shall not apply. Nothing contained in this chapter shall be deemed to repeal any of the provisions of any law of this state relating to the discrimination because of race, color, religion, national origin, sex, ancestry, age, disability, or familial status.
2. In interpreting and applying chapter 213 in employment cases, courts shall rely heavily upon judicial interpretations of Title VII of the Civil Rights Act of 1964 (42 U.S.C 2000e et seq.), as amended, the Age Discrimination Employment Act of 1967 (29 U.S.C 621 et seq.), and the Americans With Disabilities Act (42 U.S.C. 12101 et seq.), as amended.
3. The legislature intends expressly to abrogate by this statute the case of McBryde v. Ritenour School District, 207 S.W.3d 162 (Mo. App. E.D.) and its progeny as it relates to the necessity and appropriateness of the issuance of a business judgment instruction.
4. Rule 74.04 of the Missouri rules of civil procedure is an integral part of the rules as a whole and can be a tool of great utility in removing factually insubstantial chapter 213 cases from crowded dockets. If an employer in a chapter 213 case files a Rule 74.04 motion, there are two frameworks for analysis that should be considered highly persuasive:
(1) Plaintiff may submit direct evidence of discrimination, in which case the analysis of Prince Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) and its progeny are highly persuasive;
(2) If plaintiff submits no direct evidence of discrimination, then the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-01 (1973) and its progeny present a highly persuasive framework for analysis.
5. The legislature intends expressly to abrogate by this statute the cases of Daugherty v. City of Maryland Heights, 231 S.W.3d 814 (Mo. banc), Korando v. Mallinckrodt, Inc. 239 S.W.3d 647 (Mo. App. E.D.), Lomax v. DaimlerChrysler Corp., 243 S.W.3d 474 (Mo. App. E.D.), and Francin v. Mosby, Inc., 248 S.W.3d 619 (Mo. App. E.D.) and their progeny as they relate to the contributing factor standard and abandonment of the burden shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-01 (1973) and the mixed motive framework established in Prince Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989).
6. The legislature intends to abrogate MAI 31.24 and MAI 31.25.
213.111. 1. If, after one hundred eighty days from the filing of a complaint alleging an unlawful discriminatory practice pursuant to section 213.055, 213.065 or 213.070 to the extent that the alleged violation of section 213.070 relates to or involves a violation of section 213.055 or 213.065, or subdivision (3) of section 213.070 as it relates to employment and public accommodations, the commission has not completed its administrative processing and the person aggrieved so requests in writing, the commission shall issue to the person claiming to be aggrieved a letter indicating his or her right to bring a civil action within ninety days of such notice against the respondent named in the complaint. If, after the filing of a complaint pursuant to sections 213.040, 213.045, 213.050 and 213.070, to the extent that the alleged violation of section 213.070 relates to or involves a violation of sections 213.040, 213.045 and 213.050, or subdivision (3) of section 213.070 as it relates to housing, and the person aggrieved so requests in writing, the commission shall issue to the person claiming to be aggrieved a letter indicating his or her right to bring a civil action within ninety days of such notice against the respondent named in the complaint. Such an action may be brought in any circuit court in any county in which the unlawful discriminatory practice is alleged to have [occurred] been committed, either before a circuit or associate circuit judge. Upon issuance of this notice, the commission shall terminate all proceedings relating to the complaint. No person may file or reinstate a complaint with the commission after the issuance of a notice under this section relating to the same practice or act. Any action brought in court under this section shall be filed within ninety days from the date of the commission's notification letter to the individual but no later than two years after the alleged cause occurred or its reasonable discovery by the alleged injured party.
2. The court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, and may award to the plaintiff actual and punitive damages, and may award court costs and reasonable attorney fees to the prevailing party, other than a state agency or commission or a local commission; except that, a prevailing respondent may be awarded court costs and reasonable attorney fees only upon a showing that the case is without foundation.
3. Any party to any action initiated under this section may demand a trial by jury.
4. The sum of the amount of actual damages, including damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and punitive damages awarded under this section shall not exceed for each complaining party:
(1) Actual back pay and interest on back pay; and
(2) (a) In the case of a respondent who has more than five and fewer than one hundred one employees in each of twenty or more calendar weeks in the current or preceding calendar year, fifty thousand dollars.
(b) In the case of a respondent who has more than one hundred and fewer than two hundred one employees in each of twenty or more calendar weeks in the current or preceding calendar year, one hundred thousand dollars.
(c) In the case of a respondent who has more than two hundred and fewer than five hundred one employees in each of twenty or more calendar weeks in the current or preceding calendar year, two hundred thousand dollars.
(d) In the case of a respondent who has more than five hundred employees in each of twenty or more calendar weeks in the current or preceding calendar year, three hundred thousand dollars.
5. Subsection 4 of this section shall not apply to actions filed for violations of sections 213.040, 213.045, 213.050, and 213.070 to the extent that the alleged violation of section 213.070 relates to or involves a violation of sections 213.040, 213.045, and 213.050, or subsection 3 of section 213.070 as it relates to housing.
6. In any employment-related civil action brought under this chapter, the plaintiff shall bear the burden of proving that the protected criterion was the motivating factor in the alleged unlawful decision or action; provided, however, in an employment-related civil action brought under this chapter, where the decision or action was allegedly premised upon age, the plaintiff shall bear the burden of proving that but for the plaintiff's age, the decision or action would not have been made.
7. Notwithstanding subsection 4 of this section, punitive damages shall not be awarded against the state of Missouri or any of its political subdivisions.
287.780. 1. No employer [or agent] shall discharge or in any way discriminate against any employee for exercising any of his rights under this chapter. Any employee who has been discharged or discriminated against shall have a civil action for damages against his employer.
2. It shall be unlawful:
(1) For an employer to retaliate or discriminate in any manner against an employee exclusively as a result of the fact the employee refused to violate a statute, regulation, constitutional provision, ordinance, or common law at the request of someone employed by the employer who has direct or indirect supervisory authority over the employee; or
(2) For an employer to retaliate or discriminate in any manner against an employee exclusively as a result of the fact the employee reported to an authority of the federal, state, or local government a violation by the employer of any statute, regulation, constitutional provision, ordinance, or common law.
3. This chapter shall provide the exclusive remedy for any and all unlawful employment practices articulated herein and hereby abrogates any common law causes of action not specifically articulated herein.
4. In any action for damages brought under subsection 1, 2, or 3 of this section, the plaintiff shall have the burden of proving the employer's decision or action was motivated exclusively by the employee's exercise of his or her rights under this chapter.
5. In an action brought under subsection 1 of this section by an employee against an employer or former employer, the sum of the amount of compensatory damages awarded and the amount of punitive damages awarded shall not exceed, for each plaintiff, the following:
(1) In the case of a defendant who has fewer than one hundred one employees in each of twenty or more calendar weeks in the current or preceding calendar year, fifty thousand dollars;
(2) In the case of a defendant who has more than one hundred and fewer than two hundred one employees in each of twenty or more calendar weeks in the current or preceding calendar year, one hundred thousand dollars;
(3) In the case of a defendant who has more than two hundred and fewer than five hundred one employees in each of twenty or more calendar weeks in the current or preceding calendar year, two hundred thousand dollars;
(4) In the case of a defendant who has more than five hundred employees in each of twenty or more calendar weeks in the current or preceding calendar year, three hundred thousand dollars.
6. Compensatory damages within the meaning of this section shall not include back pay and interest on back pay.
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