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November
2019
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04:21 PM
America/Chicago

Moving forward: Missouri Supreme Court issues new jury instructions relating to Missouri Human Rights Act

Vol. 75, No. 5 / September - October 2019

Summary

On August 28, 2017, Missouri’s Senate Bill 43 became effective, amending parts of the Missouri Human Rights Act (MHRA). In addition to altering the standards for employment discrimination claims in Missouri, SB 43 abrogated all of Missouri’s jury instructions concerning the MHRA. On May 21, 2018, the Supreme Court of Missouri released revised jury instructions for civil actions brought under the MHRA.

by Alan Rupe and Kevin E. Miller[1]

Prior to these instructions, which address retroactive application of the changes to the MHRA in SB 43, the majority of Missouri courts determined the legislation should not apply retroactively.[2] However, at least one Missouri court determined a portion of the legislative amendments did apply retroactively.[3]

Through the creation of the revised jury instructions, the Supreme Court of Missouri has adopted the majority view that the changes to the MHRA do not apply retroactively because new jury instructions, which apply based upon when the claims accrued, have been created. A claim accrues when the alleged discriminatory conduct occurs.[4]

These new jury instructions are divided into two categories: (1) instructions for MHRA violations that accrued before August 28, 2017; and (2) instructions for MHRA violations that accrue on or after August 28, 2017. The major difference between the two categories of instructions is the burden of proof that plaintiffs will need to demonstrate to be successful on their claims.  

Generally, for actions accruing before August 28, 2017, MHRA plaintiffs will need to show that protected action was a contributing factor to an adverse employment decision. A protected action is a contributing factor if the employer relied on it in any way when making an employment decision. For actions accruing on or after August 28, 2017, the plaintiff will need to show that the protected action was a motivating factor in the adverse employment decision. In this context, a “motivating factor” means the protected action actually played a role in and had a determinative influence on the adverse employment decision. The “motivating factor” standard is in keeping with the federal standard of proof for discrimination claims under Title VII.

The changes to the jury instructions impact six areas under the MHRA (discussed in detail below): 1) protected class discrimination; 2) disability discrimination; 3) retaliation or discrimination for filing a workers’ compensation claim; 4) public policy protections for whistleblowers; 5) defenses to claims of discrimination; and 6) damages.

Protected Class Discrimination
The Supreme Court of Missouri promulgated the following instructions concerning protected class discrimination accruing prior to Aug. 28, 2017:

Your verdict must be for the plaintiff if you believe:

First, defendant (here insert the alleged discriminatory act, such as “failed to hire,” “discharged” or other act within the scope of §213.055, RSMo), plaintiff, and
Second, (here insert one or more of the protected classifications supported by the evidence such as race, color, religion, national origin, sex, ancestry, age or disability) was a contributing factor in such (here, repeat alleged discriminatory act, such as “failure to hire,” “discharge,” etc.), and
Third, as a direct result of such conduct, plaintiff sustained damage.
*[unless you believe plaintiff is not entitled to recover by reason of Instruction Number __ (here insert number of affirmative defense instruction)]. MAI 38.01(A).

For protected class discrimination claims accruing after Aug. 28, 2017, the Supreme Court adopted the following language:

Your verdict must be for plaintiff if you believe:

First, defendant (here insert the alleged discriminatory act, such as “failed to hire,” “discharged” or other act within the scope of § 213.055, RSMo), plaintiff, and
Second, plaintiff's (here insert one or more of the protected classifications supported by the evidence such as race, color, religion, national origin, sex, ancestry, age or disability) actually played a role in and had a determinative influence on such action, and
Third, such conduct directly caused damage to plaintiff.
* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number ___ (here insert number of affirmative defense instruction)]. MAI 38.06.

Courts will now use MAI 38.01(A) to instruct a jury for employment claims that accrued before August 28, 2017, and MAI 38.06 for claims that accrued on or after August 28, 2017. However, one notable exception is that courts will use MAI 38.01(B) – not MAI 38.01(A) – when a plaintiff alleges disability discrimination and the employer contests whether the plaintiff has a disability within the meaning of the MHRA. 

For all employment discrimination claims, the jury instructions generally require three elements: (1) the employer subjected the plaintiff to a discriminatory act within the meaning of the MHRA; (2) the plaintiff is a member of a class protected by the MHRA; and (3) the plaintiff suffered damages as a result of the employer’s conduct. 

Discriminatory acts include an employer’s failure to hire, failure to promote, discharge, or any other conduct prohibited by§ 213.055, RSMo. Protected classes include race, color, religion, national origin, sex, ancestry, age, or disability. Therefore, the plaintiffs must assert that their employer committed a discriminatory action against them, at least in part because the plaintiff is a member of a class protected by the MHRA. Finally, the plaintiff must show that he or she suffered damages because of the employer’s conduct. These compensatory damages generally include back and future lost wages, pain and suffering, and emotional damages.

Despite being generally similar, the jury instructions for MAI 38.01(A) and MAI 38.06 contain a subtle, but important, difference. The jury instruction for older MHRA violations requires the jury to conclude that the plaintiff’s protected class was a “contributing factor” in the employer’s decision to subject the plaintiff to a discriminatory act. However, the jury instruction for more recent MHRA violations requires the jury to conclude that the plaintiff’s protected class “actually played a role in and had a determinative influence” on the employer’s decision to subject the plaintiff to a discriminatory act. 

In addition to the decision of the Missouri Legislature to abrogate the jury instructions for post-August 28, 2017, MHRA violations, the Legislature also abrogated existing appellate precedent. For instance, the Legislature abrogated the Supreme Court of Missouri’s holding in Daugherty v. City of Maryland Heights.[5

In Daugherty, the Supreme Court held that a plaintiff need only present evidence that the plaintiff’s protected class was a “contributing factor” with respect to the employer’s decision to subject the plaintiff to an adverse employment action.[6] The Daugherty Court reasoned that the standard for the plaintiff to survive summary judgment could not be higher than the standard required to submit the claim to the jury.[7] Therefore, the Daugherty Court concluded that the plaintiff’s MHRA claim could survive a summary judgment if a material factual dispute existed as to whether the plaintiff’s protected class was a “contributing factor” in the employer’s decision to take an adverse employment action against the plaintiff. 

In rendering its decision, the Daugherty Court looked to MAI 31.24 – the jury instruction relating to MHRA violations at the time – as highly persuasive in reaching its holding. Daugherty, and other abrogated decisions, may still be used as persuasive precedent for cases accruing prior to August 28, 2017.

With the implementation of MAI 38.06, the inquiry during summary judgment will be whether a material factual dispute exists that a plaintiff’s protected class “actually played a role in and had a determinative influence” on the employer’s employment decision. With a plaintiff’s requirement to show a “determinative influence” instead of “contributing factor,” prevailing at the summary judgment stage should become significantly easier for employers facing MHRA claims. 

Disputed Disability Discrimination
The following jury instruction is applicable to disability discrimination claims accruing prior to August 28, 2017, when the disability is in dispute:

Your verdict must be for plaintiff if you believe:

First, plaintiff ["has a (physical)(mental) impairment that substantially limits one or more of plaintiff’s major life activities;" "is regarded as having a (physical)(mental) impairment that substantially limits one or more of plaintiff’s major life activities;" "has a (physical)(mental) impairment of record that substantially limits one or more of plaintiff's major life activities"], and
Second, such impairment ("would not" "did not") interfere with performing the job in question ("if provided reasonable accommodation")("and did not require any accommodation"), and
Third, defendant (here insert the alleged discriminatory act, such as “failed to hire," "discharged" or other act within the scope of § 213.055, RSMo), plaintiff, and
Fourth, such disability was a contributing factor in such (here insert the alleged discriminatory act, such as “failure to hire," "discharge," etc.), and
Fifth, as a direct result of such conduct, plaintiff sustained damage.
* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number ____ (here insert number of affirmative defense instruction)]. MAI 38.01(B).

For these types of claims accruing after August 28, 2017, the following jury instruction is applicable:

Your verdict must be for plaintiff if you believe:

First, plaintiff ["has a (physical)(mental) impairment that substantially limits one or more of plaintiff’s major life activities;" "is regarded as having a (physical)(mental) impairment that substantially limits one or more of plaintiff’s major life activities;" "has a (physical)(mental) impairment of record that substantially limits one or more of plaintiff's major life activities"], and
Second, such impairment ("would not" "did not") interfere with performing the job in question ("if provided reasonable accommodation") ("and did not require any accommodation"), and
Third, defendant (here insert the alleged discriminatory act, such as "failed to hire," "discharged" or other act within the scope of § 213.055, RSMo), plaintiff, and
Fourth, such disability actually played  a role in and had a determinative influence on (here insert the alleged discriminatory act, such as "failure to hire," "discharge," etc.), and
Fifth, such conduct directly caused damage to plaintiff.
* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number  _   (here insert number of affirmative defense instruction)]. MAI 38.07.

MAIs 38.01(B) and 38.07 apply to disability discrimination claims in which the disability is disputed. Similar to claims of discrimination that do not involve a disability, one major inquiry at summary judgment will be whether any alleged discrimination had a determinative influence on the decision to take an adverse employment action. The change to the “motivating factor” test will impact claims of disability discrimination.

Retaliatory Discharge
The Supreme Court of Missouri adopted the following jury instruction for claims of retaliatory discharge that occurred prior to August 28, 2017:

Your verdict must be for plaintiff if you believe:

First, plaintiff was employed by defendant, and
Second, plaintiff filed a workers' compensation claim, and
Third, defendant discharged plaintiff, and
Fourth, plaintiff's filing of the workers' compensation claim was a contributing factor to plaintiff's discharge, and
Fifth, as a direct result of such discharge plaintiff sustained damage. MAI 38.04.

For retaliatory discharge claims accruing after August 28, 2017, the following jury instruction will be provided to the jury:

Your verdict must be for plaintiff if you believe:

First, plaintiff was employed by defendant, and
Second, plaintiff filed a workers' compensation claim, and
Third, defendant discharged plaintiff, and
Fourth, plaintiff's filing of the workers' compensation claim actually played a role in and had a determinative influence on plaintiff’s discharge, and
Fifth, such discharge directly caused damage to plaintiff. MAI 38.05.

For actions that accrue prior to August 28, 2017, plaintiffs will need to show that filing a workers’ compensation claim was a contributing factor to their discharge. There is a possibility that a jury would find that filing a workers’ compensation claim is a contributing factor whenever an employee is terminated shortly after filing such a claim. In Deml v. Sheehan Pipeline Constr., a Missouri Court of Appeals case decided before the changes, the court applied the contributing factor analysis to a motion for summary judgment. The employee sought treatment for a workplace injury, requested accommodations, and was subsequently released from employment. These facts were sufficient to survive the motion for summary judgment because it was possible that the employee seeking medical treatment contributed to the decision to terminate the employee.[8]

The change from a “contributing” to “motivating factor” standard might prove beneficial to employers in the defense of retaliation claims. The “motivating factor” requirement makes presenting evidence that the employee’s termination was for reasons other than the filing of a workers’ compensation claim more effective. While it is possible the court would nonetheless have denied summary judgment in the Deml case after applying the new “motivating factor” test, a plaintiff will need to establish a greater causal link than under the “contributing factor” test to be successful on a claim of retaliation. Other jurisdictions that apply the “motivating factor” analysis have refused to find an employer liable when:

  • The employee was not performing essential duties of the job;
  • The employee was released because post-injury physical limitations prevented the employee from completing work tasks; or
  • The employee was discharged for clear violations of company policy.

If Missouri courts take a similar approach under the “motivating factor” test as other jurisdictions that have adopted the test, employers will have an easier time defending claims of retaliation.

Public Policy Protections for Whistleblowers
SB 43 also created the Whistleblower’s Protection Act (WPA). The Missouri Legislature intended for the WPA to codify the existing common law exceptions to the at-will employment doctrine and “to limit their future expansion by the courts.” For actions under the WPA, the jury will be provided the following instruction:

Your verdict must be for plaintiff if you believe:

First, plaintiff  (here describe plaintiff’s act or refusal to act such as "refused to submit duplicate billing to Medicare," or "reported suspected child abuse to the Division of Family Services"), and
Second, defendant discharged plaintiff, and
Third, such conduct of plaintiff as submitted in paragraph First was a contributing factor in his/her discharge, and
Fourth, as a direct result of his/her discharge, plaintiff sustained damage.
* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number ___ (here insert number of affirmative defense instruction)]. MAI 38.03.

Unlike claims for discrimination or retaliatory discharge, all claims under the WPA are subject to the “contributing factor” analysis rather than the stricter “motivating factor” test applied to claims accruing after August 28, 2017.

Lawful Justification and the Business Judgment Rule
The new jury instructions also affect the defenses that can be presented by employers. Employers have the opportunity to request a “lawful justification” instruction for MHRA claims that accrued before August 28, 2017. In contrast, for claims arising on or after August 28, 2017, employers may request an instruction on the business judgment rule.

The “lawful justification” instruction that will be provided to the jury is as follows:

Your verdict must be for defendant if you believe:

First, defendant (here insert alleged discriminatory act submitted in plaintiff’s verdict directing instruction such as "failed to hire," "discharged" or other act within the scope of § 213.055, RSMo) plaintiff because (here set forth the alleged lawful reason such action was taken), and
Second, in so doing (here insert the protected classification submitted by plaintiff, such as race, color, religion, national origin, etc.) was not a contributing factor. MAI 38.02.

In contrast, in cases accruing after August 28, 2017, the following “business judgment” instruction will be provided to the jury:

Your verdict must be for defendant if you believe defendant (here insert the alleged discriminatory act submitted in plaintiff’s verdict directing instruction such as "failed to hire," "discharged," or other act within the scope of § 213.055, RSMo), plaintiff because (here insert non-discriminatory business reason for defendant's action) as an exercise of sound business judgment without regard to plaintiffs (here insert the applicable protected classification submitted by plaintiff such as race, color, religion, national origin, etc.) even if you disagree with such decision or believe it to be harsh. MAI 38.08.

Under the “lawful justification” instruction, the jury will be instructed to return a verdict for the employer if (1) the jury determines  the employment action about which the plaintiff complains was taken for a lawful reason and (2) the plaintiff’s protected class was not a “contributing factor” in the employer’s employment decision. The employer is not required to request the “lawful justification” instruction and may argue the defense directly to the jury if supported by the law and the evidence. 

The “business judgment” instruction gives broader protection to employers. Under the “business judgment” instruction, the jury is instructed to find for the employer if the alleged discriminatory action was based on sound business judgment made without regard to the employee’s protected class. Further, jurors will be instructed to find for the employer even if they disagree with the decision or believe the decision was harsh. For example, budgetary constraints may provide a valid reason for releasing or reducing the hours of an employee. Another example of a valid business judgment reason could be releasing an employee who is disruptive to the work environment. With the enactment of the “business judgment” instruction, these types of defenses will be easier to present to the jury.

Damages
MAI 38.09 alters the jury instructions for damages regarding claims that accrue on or after August 28, 2017. MAI 38.09 instructs a jury that:

If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any actual damages including back pay, other past [and future] economic losses, and any past [and future] emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-economic losses as a direct result of the occurrence mentioned in the evidence. MAI 38.09.

The Supreme Court of Missouri’s notes to the instruction state that the parties and court should discuss, on the record, what damages the evidence supports during the instruction conference.

SB 43 also implemented a statutory cap on damages, making them in line with the federal caps on damages in discrimination and retaliation claims under Title VII. Damages are capped at $50,000 for employers with between five and 100 employees; $100,000 for employers with between 100 and 200 employees; $200,000 for employers with between 200 and 499 employees; or $500,000 for employers with 500 or more employees. The Supreme Court of Missouri notes, however, that applying the cap is a judicial function, not a function of the jury.

Conclusion
The Supreme Court of Missouri released the jury instructions to advise juries regarding the amendments to the MHRA. However, the instructions also provide guidance to employers regarding how courts are to instruct juries at trial in employment discrimination cases.

Generally, the new standards applicable to MHRA claims, and the attendant instructions, change the burden of proof a plaintiff must meet in order to be successful on such a claim.

Endnotes

Alan RupeKevin Miller1 Alan Rupe is the managing partner of Lewis Brisbois’ Kansas City and Wichita offices, and is vice-chair of their Labor & Employment Practice. Rupe is well-versed in EEOC and civil rights complaints at the federal level. Associate Kevin E. Miller is a member of Lewis Brisbois’ Labor & Employment practice. Miller defends clients in state and federal courts against claims of employment discrimination, and also represents clients before the EEOC and Kansas Human Rights Commission.


2 Hurley v. VendTech-SGI, LLC,  No. 16-01222-CV-W-ODS, 2018 WL 736057 (W.D. Mo. Feb. 6, 2018) (finding the amendments to the MHRA did not apply retroactively); Woodruff v. Jefferson City Area Young Men’s Christian Ass’n, No. 17-4244-CV-C-WJE, 2018 576857 (W.D. Mo. Jan. 27, 2018) (finding the MHRA amendment pertaining to individual liability is substantive and cannot be applied retroactively).

3 Gaylor v. Kemco Tool & Mach. Co., No. 14SL-CC00054 (St. Louis Cty. Cir. Ct. Oct. 13, 2017) (finding the “motivating factor” standard and “business judgment” instruction apply retroactively but the damages cap does not apply retroactively).

4 Marshall v. Walgreen Co., No. 4:18 CV 331 CDP,  2018 WL 3025813 (E.D. Mo. June 18, 2018).

5 Daugherty v. City of Maryland Heights, 231 S.W.3d 814 (Mo. banc 2007). 

6 Id. at 824-25.

7 Id. at 820. 

8 Demi v. Sheehan Pipeline Constr., 452 S.W.3d 211, 216-17 (Mo. App. E.D. 2014).