Burden of Proof in Retaliation Cases
ABSTRACT: Employers around the country are eagerly waiting for the U.S. Supreme Court to rule on the appropriate standard of proof for Title VII retaliation claims, in University of Texas Southwestern Medical Center v. Nassar. What does this mean for Missouri employers? Less than you might think.
If you, like me, get to read a number of employment law blogs from around the country, you have undoubtedly noticed the great fanfare accorded the U.S. Supreme Court’s agreement to decide the burden of proof standard to be applied to retaliation claims, in cases brought under Title VII. University of Texas Southwestern Medical Center v. Nassar, 674 F.3d 448 (5th Cir. 2012), cert. granted, 133 S.Ct. 978 (U.S. 1/18/13).
Pop quiz: if you are a Missouri employer, or an attorney who represents companies whose workforce is in Missouri, what should your reaction be to this much-heralded legal development?
Answer: a polite yawn.Why?
Under Title VII and other federal anti-discrimination statutes, the U.S. Supreme Court and other federal courts have found that different standards of proof apply to different types of cases. In Price Waterhouse v. Hopkins, the Supreme Court held that a Title VII plaintiff alleging sex discrimination needed only to prove that gender was a “motivating factor” in an adverse employment decision. In a “mixed motive” case, the burden then shifts to the employer to show that it would have made the same decision regardless of this motivating factor. In Gross v. FBL Financial Services, the Court held that under the Age Discrimination in Employment Act, the statute does not recognize mixed motive claims, and a different standard of proof applied: a plaintiff must prove that plaintiff’s age was the “but for” cause of the adverse employment decision. Federal appellate courts have divided on the standard of proof applicable to Title VII retaliation claims.
But in Missouri, none of this really matters, because experienced plaintiffs’ employment counsel ALWAYS file their clients’ discrimination claims in state court, under the Missouri Human Rights Act (MHRA), rather than under a counterpart federal statute. The Missouri Supreme Court has held that federal law has little bearing on MHRA standards of proof, and a plaintiff’s burden of proof is always the same under the MHRA, no matter what type of discrimination is involved: that age/sex/race/national origin/religion/etc. was a “contributing factor” in the adverse employment decision. This standard applies to retaliation claims, as well as other discrimination claims. See Fleshner v. Pepose Vision Inst., 304 S.W.3d 81 (Mo.banc 2010); Hill v. Ford Motor Co., 277 S.W.3d 659 (Mo.banc 2009); Daugherty v. City of Md. Heights, 231 S.W.3d 814 (Mo.banc 2007).
The reasons plaintiffs in Missouri shun federal court, and file under the MHRA in state court, are several: (1) The “contributing factor” standard is generally easier for a plaintiff to meet than any counterpart federal standard; (2) the Missouri Supreme Court has cautioned trial courts that “summary judgment should seldom be used in employment discrimination cases because such cases are inherently fact-based and often depend on inferences rather than on direct evidence”, which makes it difficult for corporate defendants to keep even weak cases from proceeding to trial; (3) the MHRA does not have the same strict damages caps that appear in counterpart federal anti-discrimination statutes; (4) under the MHRA, corporate supervisors/managers who were directly involved in an adverse employment decision can almost always be added as defendants (which, among other things, usually prevents an employer with an out-of-state principal place of business from removing the case to federal court); and (5) plaintiffs’ counsel tend to prefer state court jury selection procedures to those in federal court.
So: if you or your company are likely to encounter a discrimination case brought in a state other than Missouri, by all means, you should closely monitor the progress of the Nassar case at the U.S. Supreme Court. Outside of Missouri, it is a big deal. But in Missouri state court discrimination cases, the answer to the burden of proof question is always the same: the “contributing factor” test.
There is, however, one important caveat. In each of its past two sessions, the Missouri General Assembly has passed legislation that would change the burden of proof in employment discrimination cases, and bring it more closely in line with federal law. Each time, the legislation was vetoed by Governor Jay Nixon.
In the current legislative session, House Bill 320 has passed the Missouri House of Representatives by a vote of 94-55. The most significant provision of the bill would require workers who bring MHRA lawsuits to prove discrimination was a "motivating factor,” not simply a contributing factor in the employer's adverse employment action. The bill would also cap noneconomic damages (which include pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses) at five times the amount of economic damages awarded by the court. Further, in a new set of provisions called the “Whistleblower’s Protection Act”, the bill would codify existing common law “whistleblower” exceptions to the employment-at-will doctrine, while at the same time limiting further judicial expansion of those exceptions.
A similar bill (Senate Bill 353) introduced in the state Senate would replace the “contributing factor” standard with “motivating factor”, except in adverse impact cases, where the courts are directed to follow federal anti-discrimination law. The Senate bill contains damage caps which more closely track those under federal law. And instead of containing a new whistleblower statute that codifies and freezes the status quo, SB 353 accomplishes the same result by stating that all case law on exceptions to employment-at-will is abrogated, except for the following currently recognized exceptions that bar an employer from discharging an employee who: reports an unlawful act of the employer or its agent to governmental or law enforcement agencies, officer, or the employee's human resources representative employed by the employer; reports serious misconduct of the employer or its agent that violates a clear mandate of public policy as articulated in a constitutional provision, statute, regulation promulgated pursuant to statute, or a rule created by a governmental body; refuses to carry out a directive issued by an employer or its agent that, if completed, would be a violation of the law; or engages in conduct otherwise protected by statute or regulation.
The legislation is currently in committee in the state Senate. It may reasonably be assumed that if a bill passes the General Assembly, it will again be vetoed by the Governor. With the Republican majority in both houses of the state legislature having increased in the 2012 elections, it is possible (albeit uncertain) that such a veto would be over-ridden, by a required two-thirds vote of both legislative chambers. Republicans currently control 109 of 163 House seats (66.87%), and 24 of 34 Senate seats (70.6%).