Missouri Commission on Human Rights 6th Annual

MISSOURI HUMAN RIGHTS CONFERENCE

Recent Developments under the Missouri Human Rights Act November 2, 2017

Kristy A. Lambert, J.D. Unit Supervisor Kansas City Office kristy.lambert@labor.mo.gov

Missouri Commission on Human Rights TODAY’S CO-PRESENTER

Missouri Commission on Human Rights MISSION

The mission of MCHR is to:

prevent discrimination through education and outreach; and to

eliminate discrimination through the enforcement of the Missouri Human Rights Act.

Missouri Commission on Human Rights JURISDICTION

The Missouri Human Rights Act prohibits discrimination in

employment, places of public accommodations, and housing

on race, color, religion, national origin, ancestry, sex, disability, age (in employment only) and familial status (in housing only), as well as retaliation and association.

Missouri Commission on Human Rights ADMINISTRATIVE PROCESS

INTAKE

INVESTIGATION

CONCILIATION

PUBLIC HEARING

Missouri Commission on Human Rights RECENT DEVELOPMENTS

Cases: Farrow v. St. Francis Medical Ctr. Tivol v. MCHR Pittman v. Cook Paper Recycling R.M.A. v. Blue Springs School Distr. Lampley v. MCHR

Statute: Senate Bill 43

Missouri Commission on Human Rights IGOE v. DOLIR DECISION

Under the Missouri Supreme Court’s 2005 Igoe v. DOLIR decision, MCHR can issue notices of right to sue sua sponte to manage our caseloads.

Missouri Commission on Human Rights FARROW DECISION: JURISDICTION

8 CSR 60-3.010(9) A corporation or association must be one hundred percent (100%) owned and operated by a religious or sectarian group and being a member of that religion or sect must be a requirement for employment for that corporation or association to be exempt as an employer under section 213.010(5), RSMo.

Farrow v. St. Francis Medical Center (Mo. 2013):

Under Missouri law, non-profit corporations have no owners. Therefore, non-profit corporations are not owned by religious or sectarian groups and are not exempt from the Missouri Human Rights Act.

Missouri Commission on Human Rights FARROW DECISION

MCHR cannot issue notices of right to sue on allegations where it lacks jurisdiction.

Section 213.111 requires that when MCHR has not completed its administrative processing after 180 days and Complainant requests it in writing, MCHR must issue a notice of right to sue.

Missouri Commission on Human Rights FARROW DECISION

Post-180 Days on Request: MCHR will issue the notice of right to sue in those circumstances (post-180 days on request) and, where there are any pending jurisdictional issues, it will explicitly indicate that its administrative processing has not been completed, including making any jurisdictional determinations.

Missouri Commission on Human Rights FARROW DECISION

In cases for which the 180 days from filing has not passed, if the Complainant requests notice of his/her right to sue, then MCHR will make jurisdictional determinations on all of the allegations prior to issuing notices of right to sue.

MCHR will administratively close allegations that are untimely or otherwise non-jurisdictional without a notice of right to sue on these allegations and grant the right to sue on only jurisdictional allegations.

Missouri Commission on Human Rights TIVOL v. MCHR

Tivol v. MCHR (Mo. 2017) When a case has been on file for over 180 days and Complainant requests a notice of right to sue, §213.111 requires MCHR to issue it, even if it has not made jurisdictional determinations.

Missouri Commission on Human Rights PITTMAN v. COOK PAPER RECYLING

James Pittman v. Cook Paper Recycling Corporation, 478 S.W.3d 479 (Mo. App. W.D. 2015)

Sex under MHRA does not include sexual orientation. Therefore, employment discrimination based on sexual orientation is not prohibited by the MHRA. For the MHRA to cover sexual orientation, the legislature would need to change the statute.

Missouri Commission on Human Rights R.M.A. v. BLUE SPRINGS R-IV S.D.

R.M.A. (a minor child), by his next friend Rachelle Appleberry v. Blue Springs R-IV School District and Blue Springs School District Board of Education (Mo. App. W.D. 2017) Sex does not include transgender. R.M.A.'s status as a transitioning transgender teenager is not unique to one sex, and is thus not susceptible to use as a means of depriving one sex of a right or privilege afforded to the other sex.

Missouri Commission on Human Rights LAMPLEY v. MCHR

Harold Lampley and Rene Frost v. MCHR, WD80288 (Mo. App. 2017) In 2014, Complainant alleged sex discrimination because Lampley’s appearance and behavior did not conform with the stereotypes of maleness his managers held. He alleged harassment, disparate treatment, and retaliation when he was grossly underscored on his evaluation following his complaint. His good friend and coworker also alleged retaliation and association.

Missouri Commission on Human Rights LAMPLEY v. MCHR

MCHR closed No Jurisdiction because MHRA does not cover sexual orientation. Complainants appealed and trial court granted summary judgment to MCHR. “Sex-based stereotyping can give rise to an inference of unlawful discrimination.” Court reversed and remanded to circuit court to remand to MCHR to issue right to sue letters.

Missouri Commission on Human Rights SENATE BILL 43

•  Requires higher standard of proof •  Excludes disparate impact cases •  Retaliation and association not covered in housing •  Excludes smaller, especially seasonal, employers •  Excludes individuals respondents •  Abrogates certain court decisions and all jury

instructions for MHRA claims; requires business judgment rule jury instruction

•  Caps damages ($50,000 - $500,000) •  Creates the Missouri Whistleblower Protection Act

Missouri Commission on Human Rights SENATE BILL 43

Addressed some Farrow issues: •  Filing a timely MCHR complaint is a jurisdictional

condition precedent to file suit under the MRHA. •  Timeliness can be raised as defense to MCHR or in

subsequent litigation. •  MCHR will make jurisdictional determinations in all

cases. •  Right to sue can issue only on request after complaint

on file for over 180 days and administrative process not yet completed.

Missouri Commission on Human Rights SENATE BILL 43

Applicability: • MCHR’s position is S.B. 43 is not retroactive. Potential Impacts: • Issues concerning substantial equivalency to FHA • Strain on limited administrative resources for jurisdictional determinations and litigation • More summary judgments

Missouri Commission on Human Rights

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Missouri Commission on Human Rights CONTACT US

Post Office Box 1129 3315 West Truman Boulevard Jefferson City, MO 65102-1129

(573) 751-3325 www.labor.mo.gov/discrimination

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