April 29, 2011
Gov. Nixon vetoes Senate Bill 188
Good afternoon. Thank you all for being here at this historic old courthouse, at this historic moment for Missouri.
It’s good to look out and see an audience that reflects the true diversity of our state.
We stand on hallowed ground, in the footsteps of Dred Scott, whose unsuccessful pursuit of freedom began here in 1846. Eleven long years later, after many trips to the courthouse, the decision of the highest court in the land, denying him his freedom, became a clarion call to end slavery.
As history teaches us, the path of justice is a rough and winding road. Abolition. Emancipation. Reformation. All three took root and blossomed forth from the bitter soil of partisanship and prejudice.
Today, much progress has been made in courthouses across this land, in the pursuit of civil rights and justice for all people. But much remains to be done.
A broad coalition of people of good will and good faith has gathered here today as we continue on our journey.
You are the people who have marched, and sacrificed and stood up for the mistreated… the forgotten… the forsaken … and made progress.
You are the people who fought to throw open doorways and tear down barriers so that people with disabilities could live full and independent lives.
How I wish that Max Starkloff and Jim Tuscher, two giants in the fight for disability rights, were still with us. They accomplished so much in their lifetimes:
Access to sidewalks, buildings and public transportation;
Access to housing;
Access to education and communication.
We fight on today, so thousands more people with disabilities can take the “next big step” … into the workplace, where their skills and talents can shine.
You are the people who changed public opinion and private dreams, so that little girls could reach the same goals as little boys, and become surgeons and fighter pilots, supreme court judges and CEOs.
We fight on today, in the spirit of Sue Shear and Harriet Woods, to shatter glass ceilings.
You are the people who fought for equality in education, housing and hiring, inspired by champions of social justice like Minnie Liddell, Norman Seay and Frankie Freeman.
We fight on today for economic justice for all.
We stand together today, to defend the principles that will forever guide the conscience of our state and our nation: that all people have certain unalienable rights…and that all people are entitled to equal protection under the law.
These principles are at the core of the Missouri Human Rights Act, which has come under attack.
On paper, the Missouri Human Rights Act says that it is unlawful to discriminate based on race, color, religion, national origin, sex, ancestry, age, or disability.
But it is more than words on paper.
It is a living covenant … and a call to action.
It calls us to treat all people with dignity and respect.
It calls us to root out discrimination wherever it festers in our state.
It calls us to stand up and speak out, so that whenever the powerful victimize the powerless, justice will surely follow.
It calls us to defend those who have suffered the humiliation and reversals of discrimination, so that they might find redress in our courts of law.
We must answer the call.
That is why -- today -- I intend to veto Senate Bill 188.
Senate Bill 188 would undermine key provisions of the Missouri Human Rights Act, rolling back decades of progress in protecting civil rights.
The bill would make it harder to prove discrimination in the workplace, and would throw new hurdles in the path of those whose rights have been violated.
That is unacceptable.
It is not who we are.
And it stops here.
Missouri is a state that welcomes all people, and believes that everyone should be treated with dignity and respect.
That means we have an obligation to put a stop to discrimination and dismantle barriers of prejudice wherever they exist -- in the workplace, in housing or in the public square.
It is no wonder, then, that this bill has drawn fire from this broad coalition of people here today, including:
the Anti-Defamation League;
the American Cancer Society;
the AARP;
the NAACP;
Paraquad;
the AFL-CIO;
the League of Women Voters;
the legislative Black Caucus;
the Missouri Association for the Deaf;
PROMO;
the National Alliance on Mental Illness;
Missouri Centers for Independent Living;
Missouri NOW;
the Urban League;
Missouri Association for Social Welfare;
the Whole Person;
our communities of faith;
and many, many more.
Each of us may see the face of discrimination from a different vantage point. But its ugliness is unmistakable in any light…from any angle.
Making it easier to discriminate against people with disabilities or cancer, against women, older workers and minorities, against those of different faiths and ethnicities, will not help us create jobs or be more competitive in a global economy.
The stakes – and the opportunities - have never been greater.
Because we live in a world where the boundaries of time, distance and culture are collapsing at the touch of a finger. Technology allows us to bear witness to the triumphs and tragedies of the human condition - from tsunamis to revolutions - in real time.
We will create new opportunities, and solve mankind’s most pressing problems, as allies.
And true allies are those who can see beyond the surface of what makes people different, to reveal the substance of what makes people the same.
The more we learn to understand and respect one another, the more practiced we become at treating everyone with compassion and dignity, the better citizens of the world we will become.
To thrive in a global economy and uphold these values that we share, Missouri must be a state that continues to move forward – not backward - when it comes to civil rights and equal opportunity.
For decades, the Missouri Human Rights Act has proved its strength - as both sword and shield - protecting the rights of people like Natalie and Tim.
Natalie had worked for her employer for six years when she was told there was a cutback. Her job had been eliminated. She had been given good job evaluations, raises and bonuses. She was in her 50s, with a child still in college. Her employer told her it had nothing to do with her performance – just economics.
But shortly after letting her go, her employer replaced her with a 24-year-old worker with less experience and fewer qualifications. She sued her employer under the Missouri Human Rights Act, and the case was successfully resolved.
Tim is a man who is developmentally disabled. For nearly 18 years he held the same job: washing dishes at a hotel. Tim lived with his mom, a busy registered nurse. His earnings helped keep their household afloat, and paid for his medical care.
He was named employee of the month twice, got regular pay raises for good performance, and was never disciplined for poor work.
But that all changed when he got a new boss. The new boss started writing Tim up for things Tim didn’t understand… and couldn’t read. Eventually, Tim was fired.
So Tim and his mom, who now had to work two jobs, appealed to the court that Tim had been discriminated against because of his disability. The new boss tried to get the lawsuit dismissed. But under the Missouri Human Rights Act, Tim was protected from unfair treatment.
Protecting human rights is not a matter of politics.
It is a matter of principle.
That is why today I am vetoing Senate Bill 188.
With just ten days left in this legislative session, there are those who will be putting all their energy and effort into overturning my action.
We must lock arms and go forward from this place to block those efforts. This is the time to make your voices heard in the halls of the Capitol.
We must work together to impress upon all Missourians, the importance of protecting human rights and human dignity.
We will not cede one inch of ground it has taken decades to gain.
Because in that time, we have come to see that the civil rights of all, are inextricably bound to the rights of the few.
The path of justice is a rough and winding road.
Our journey is not over.
We will not turn back now.
We will not rest while racial slurs poison the workplace.
We will not rest while faith is the target of bigotry.
We will not rest while people with disabilities are exploited and excluded.
We will go forward – together - to accomplish the unfinished work of our state and our nation.
Related to this page
Press release: Gov. Nixon vetoes Senate Bill 188
SHOW-ME FAIRNESS: Promoting Justice for Missouri Workers and Whistleblowers
Friday, April 29, 2011
Monday, April 25, 2011
Governor to Veto SB 188 on Friday, April 29, 2011
The Missouri Governor has issued a statement that he is vetoing SB 188 - the Enterprise Bill which would strip Missourians of civil rights advances - on Friday, April 29, 2011. The veto will be at a public meeting. Governor's website Thank you to everyone who worked so hard to defeat this unfair legislation. Special thanks to Legislators who stood against pressure to do the right thing.
Wednesday, March 30, 2011
Post from St. Louis Beacon - Changing Missouri Human Rights Act: Reform or Regression
| By William H. Freivogel, special to the Beacon |
| Posted 11:17 am, Mon., 3.28.11 |
The Maryland Heights Police Department fired Capt. Douglas L. Daugherty in 2002 as physically unfit for frontline duty. When he complained to the chief that he was being fired because he was 59 years old, the chief agreed. But when Daugherty filed an age discrimination suit, a judge threw it out before trial. Across town at Mosby Elsevier, a pharmaceutical publisher in Maryland Heights, Randy Francin was running into trouble with his new boss. He told the supervisor that he was going to have to take family medical leave because his wife was dying of ALS -- Lou Gehrig’s disease. A month later, the firm fired Francin. When he sued alleging discrimination based on association with a disabled person, a judge threw out the case without a trial. Both Daugherty and Francin appealed. In the Daughtery case, the Missouri Supreme Court ruled unanimously in 2007 that alleged victims of discrimination should get a jury trial if they show that discrimination may have been “a contributing factor” in their firing. Now, the Missouri General Assembly is moving swiftly to overturn that decision and deny people like Daugherty and Francin the opportunity to tell their stories to a jury. SB 188 would change the Missouri Human Rights Act by making it easier for judges to throw out cases before trial. The bill, which has passed the Senate and is expected to be taken up in the House this week, is backed by about 50 businesses and government employers. It is part of the Missouri Chamber of Commerce’s “Fix the Six” legislative agenda to create more jobs. The business interests say that making Missouri less friendly to discrimination suits makes it more friendly to employers. The bill is opposed by civil rights groups such as Paraquad, the AARP and the NAACP. They say that victims of discrimination should have a chance to have a jury decide their cases. One provision of the bill would remove the legal protection of whistleblowers who lose their jobs after warning companies or government agencies that they are about to violate the law. That provision is commonly referred to in the Legislature as the “Enterprise bill” because Enterprise Rent-a-Car of Clayton has been trying to enact it ever since 2005 when it lost a whistleblower suit filed by its fired corporate comptroller. (That portion of the bill is explained in a previous Beacon article.) JURY TRIALS Shortly after Daugherty joined the Maryland Heights police department in 1986, he was hit while on duty by a drunk driver. He returned to the force a year later and was promoted to captain in 1999. But back problems growing out of the accident forced him to miss work, and he was discharged in 2002 at age 59. A physical exam found him fit for captain’s work but unfit for front-line duty. Capt. Daugherty complained to Police Chief Thomas O’Connor, his brother-in-law, that he was being fired because of his age. Chief O’Connor agreed in a conversation that Daugherty taped, although he later said he was just trying to appease his relative. St. Louis County Circuit Judge B.C. Drumm Jr. decided there wasn’t enough evidence for the case to go to trial. The Missouri Supreme Court reversed Judge Drumm in a unanimous opinion. Judge Mary Russell wrote that Capt. Daugherty had produced evidence that discrimination may have been “a contributing factor” in his dismissal, and that he should have a chance to convince a jury. Maryland Heights ended up settling the case for a reported $775,000. At the Mosby Elsevier pharmaceutical publishing company in Maryland Heights, Francin was running into a similar problem in the summer of 2004. After 13 years at the company, Francin told a new boss that his wife was dying of ALS and he would have to take off some family leave. Ten days later, his boss began the process of firing Francin. When he went home and told his wife, Ann, about the dismissal she “couldn’t speak because of her disease. She just seemed sad,” he recalled in an interview. “I called the suicide hotline. I was so upset. I had lost my job, my wife was dying and I was depressed. I thought I had been dealt with very unfairly.” Ann died on Valentine’s Day 2005 and Francin went to court. The company claimed that it had fired Francin because of mistakes he made in his job as associate database editor and persuaded St. Louis County Circuit Court Judge James Hartenbach to throw out the case before trial. A state appeals court disagreed. Relying on the Supreme Court’s Daugherty decision, it found that Francin had enough evidence that discrimination was “a contributing factor” in his firing that he should get a chance to go before jury. Francin got his trial and lost. But he was glad he had his chance to go before a jury. “It was emotional for me, telling my story,” he said. “There were some jurors who seemed to be very supportive and got a little teary. It was important for me to have told my story and to have gotten to go all the way. I just felt as though I had to do this. It was a good, empowering experience.” If SB 188 had been law, Francin would not have gotten his jury trial and Daugherty would not have received his settlement. LIKE FEDERAL LAW SB 188 explicitly overturns the Daugherty decision, naming it as one of several decisions it is overruling. Workers would have to show that discrimination was “a motivating factor” in a firing, not just “a contributing factor.” That means that the worker would have to show that discrimination was about 50 percent of the firing decision rather than about one-third. In addition, the bill also would bar lawsuits against the individual supervisor accused of the discriminatory conduct even if that supervisor were the primary wrongdoer. The bill also sets a cap on damages that ranges from $50,000 to $300,000. The changes would affect discrimination cases involving race, color, religion, national origin, ancestry, sex, age and disability. One argument in favor of the measure is that it would bring state discrimination law closer in line with federal discrimination law. More cases would be thrown out of court before expensive trials, thus providing employers with greater economic certainty. Daniel P. Meehan, president of the Missouri Chamber of Commerce, wrote in an op-ed piece in the Kansas City Star: “The simple truth: The bill would bring Missouri closer to the federal standards that prohibit discrimination as set in the 1964 Civil Rights Act.” Opponents of SB 188 say that this similarity to federal law is part of the problem. Federal lawsuits involving job discrimination are much more likely to be thrown out by judges before trial than other kinds of lawsuits. A 2008 report by the Federal Judicial Center found that three times as many employment discrimination cases ended before trial as other civil cases. The win rate of federal employment discrimination cases between 1979 and 2006 was 15 percent, far lower than the 51 percent for cases that do not involve job discrimination, according to a study by Kevin M. Clermont and Stewart J. Schwab of Cornell Law School. Donna Harper, who was Francin’s lawyer, says it doesn’t make sense for the conservative legislators to parrot federal law. “There was a lot of talk about federalism. The bill's Republican supporters don’t want the Feds dictating to them in any area except where it helps businesses. They don’t want them dictating on gun control but they do here.” Harper said she studied the states surrounding Missouri to see if their job discrimination laws were more business friendly than Missouri’s. She said she found they weren’t. “Illinois has individual liability for the supervisor who discriminates, but Missouri wants to wipe it out. Some other states have laws that protect on the basis of marital status, sexual orientation, military service and even whether they smoke or don’t smoke. In other words, many states provide greater protection than Missouri does. “These guys come up to the Legislature with their arguments that Missouri is an outlier, that just isn’t true. Type in Google and ‘business friendly’ and you see that Missouri is 16 or 17 on business friendly list… . This whole thing is just ludicrous…. Fewer than 300 people each year get a right to sue letter. … I attended a committee hearing three or four weeks ago and not a single one of these lawyer-lobbyists could name a single business that would not locate here because of this law.” Meehan disagrees. “It’s intuitive that if we keep business costs low and provide fairness in the courts for both employers and employees, more businesses will move and expand in our state.” A spokesperson for Gov. Jay Nixon said the governor does not comment on bills during the legislative process. William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. To reach him, contact Beacon issues and politics editor Susan Hegger. |
Sunday, March 27, 2011
Great Article Reposted From St. Louis Beacon - So-Called Enterprise Bill Would Weaken Protection for Whistleblowers
By William H. Freivogel, Special to the Beacon
Posted 12:22 pm, Fri., 3.25.11
When legislators or lobbyists talk about a bill in the Missouri General Assembly that would weaken protection for whistleblowers, they often call it the "Enterprise bill."
The reason is that Enterprise Rent-a-Car of Clayton has made it a top legislative priority for the past five years, ever since the firm lost a whistleblower lawsuit filed by its fired corporate comptroller, Thomas P. Dunn.
The Senate-passed version of the whistleblower provision is expected to come up in the House soon after the members return from recess. The bill would remove whistleblower protection from an employee who warned a company it was about to violate a law. Under the bill, whistleblower protection would kick in only after the company had actually violated the law. So a whistleblower would not be protected while trying to prevent illegal conduct.
"Why would anyone want to wait until a nuclear plant melts down or Deepwater Horizon blows up before extending protection to a whistleblower who could prevent a disaster like that?" asked Matthew Ghio, one of the lawyers who represented Dunn. "Dunn blew the whistle (at Enterprise) before any of the accounting scandals at Enron or WorldCom that involved Arthur Andersen. There still would be an Arthur Andersen today if Tom had worked there."
Dunn testified that he was fired after taking the position that Enterprise was not following the accounting principles required of a public company. At the time of the dispute, Enterprise was planning to go public, although it later decided against that course. To go public, it needed Dunn to attest to the company's adherence to generally accepted accounting principles. If the legislation now favored by Enterprise had been law when Dunn challenged his firing, Enterprise would have won the case.
PERSONAL AFFRONT
Lawyers and lobbyists familiar with the court case and subsequent legislative proposals from the firm say that some Enterprise executives took the case personally.
Friends and associates of Lisa VanAmburg, Dunn's main lawyer at the time, say that Donald L. Ross, president of Enterprise Rent-A-Car Canada Limited, opposed VanAmburg for a judgeship because of her role in the case. Ross is a member of Missouri's Appellate Judicial Commission.
Raymond T. Wagner, vice president of government and public affairs for Enterprise, has led the company's effort to pass the bill during the past several legislative sessions, lawyers and lobbyists say.
Neither Ross nor Wagner was available for comment. Gordon Reel, assistant vice president for government and public affairs, said the company's main aim was to "clarify the law in regard to whistleblowers and set the right standards for public policy."
Reel said that Missouri's whistleblower protections are based on case law decided by the courts, not statutory law passed by the legislature. He maintained that the court in the Dunn case had departed from the legal interpretation that had prevailed in previous decades.
"Recent court decisions had been all over the map, not setting out clear standards. We felt like ... we should settle this once and for all."
Reel said critics try to "sensationalize" the issue by citing examples of a nuclear reactor meltdown or the Deepwater Horizon disaster. If either a nuclear company or BP committed illegal acts before meltdowns or explosions, a whistleblower would be protected under SB 188 for blowing the whistle before disaster struck, he said.
Reel said he was unable to comment on Ross's later encounter with VanAmsburg relating to the judgeship.
Ghio, Dunn's lawyer, said the Dunn decision, not the Enterprise bill, was consistent with past law on whistleblowers. "He cannot point to one Missouri public policy case prior to Dunn that held a whistleblower was only protected if the crime had occurred or the violation of a statute, rule or regulation had happened," he said. "Nearly all whistleblower protection statutes use a reasonable or good faith belief standard to afford the whistleblower protected status."
REFUSING TO SIGN OFF
The Enterprise case predates the famous accounting scandals of the past decade. Here is the sequence of events based on a 2005 opinion by Judge Booker T. Shaw of the Missouri Court of Appeals for the Eastern District:
In 1999, Enterprise was making preparations to go public. This required Dunn, the corporate comptroller, to attest that Enterprise was complying with the generally accepted accounting principles required of all public firms.
At the time, Enterprise was depreciating its cars at the rate of 2 percent per month. That rate, which overstated the depreciation, was permissible for privately held firms like Enterprise, but it did not meet generally accepted accounting principles required of public companies.
John O'Connell, Enterprise's chief financial officer and Dunn's boss, told Dunn that Jack Taylor, the company's founder, and his son, Andy, the president and CEO, were not going to change the depreciation policy. Dunn maintained that because of the depreciation policy he could not give the needed compliance statement. Shortly thereafter, Dunn was put on probation. He was fired in January 2001 and then sued for being discharged for his whistleblowing activities.
Company executives testified at the trial that Dunn had been a domineering boss, unpopular with his subordinates and had been fired for that reason. His actions relating to the accounting policies had nothing to do with it, they maintained.
A key issue was whether the accounting issue came up at a late 2000 board meeting at which the public offering was discussed. The meeting occurred just before Dunn was fired. Enterprise officials testified that the issue did not come up and minutes of the meeting appeared to back up that view.
But lawyers for Dunn found an outside director who contradicted this testimony. He was Byron Trott of the Chicago office of Goldman Sachs.
Ghio recalled it this way in a recent email: "They all (Enterprise executives) said the accounting issues weren't discussed but Trott had notes from the meeting - that he attended by conference call because he was snowed in in Chicago and could not travel to STL for the meeting -- where the three accounting issues that Tom had been fighting for a year were discussed. He even produced the power point slides for the board to prove it."
VanAmburg gave a tough closing argument in which she said that Enterprise officials, including Ross, had not told the truth about the board meeting. A jury returned a $4 million verdict, later set aside by the trial court for technical legal reasons.
The case was appealed to the state court of appeals, which ruled against Enterprise's theory of the law. Enterprise maintained that, because Dunn never had violated the law and the company never had gone public, he could not claim to have been discharged for whistleblowing. An illegal act must occur if a discharged employee is to claim whistleblower status, it maintained.
Judge Shaw disagreed, concluding that an employee fired for objecting in advance to practices he reasonably believes violate a public policy - such as security law - should be protected from firing.
The case would have gone back for a new trial, but the company settled. The terms of the settlement are confidential and Dunn agreed to confidentiality as part of the deal.
ANGER LINGERS
VanAmburg became a circuit judge not long after the trial. In 2009, she applied for an appellate judgeship. As part of that process, she had an interview with Enterprise's Ross, who had been appointed to the Appellate Judicial Commission by former Gov. Matt Blunt. Ross was a citizen member of the commission, which is part of the nonpartisan court plan.
After that Sept. 15, 2009, meeting with Ross, VanAmburg complained to associates that Ross had cited the Enterprise case as a reason he would not support her for the judgeship. She told legal associates that Ross complained that her closing argument was unethical and unfounded and occurred when Ross's wife was sitting next to him in the courtroom. Ross vowed that even though he was only one vote on the judicial commission he would fight like hell to block her, VanAmburg told her friends.
Van Amburg declined comment. She did say, however, that "I can say I intend to apply again and I am considering asking him to recuse himself."
THE 'ENTERPRISE BILL'
Year after year since the 2005 settlement, a bill supported by Enterprise has been introduced in the legislature to enact Enterprise's view of the law.
Companies supporting SB 188 and HB 205
American Dehydrated Foods Inc.
Anheuser-Busch
Associated Industries of Missouri
AT&T
Boeing
Brown Shoe
Bunge North America
Charter Communications
Covidien
Edward Jones
Emerson
Enterprise Holdings
Express Scripts
Firmenich
GoJet Airlines LLC
Graybar Electric
Greater Kansas City Chamber of Commerce
Macy's
Missouri Cable Telecommunications Association
Missouri Chamber of Commerce & Industry
Missouri Municipal League
Missouri Restaurant Association
Missouri Retailers Association
Missouri School Boards Association
National Federal of Independent Business
Peabody Energy
Schnuck Markets Inc.
Shop 'N Save Warehouse Foods INC.
Smurfit-Stone Container Corp.
Solae
Solutia
Springfield Area Chamber of Commerce
St. Louis Regional Chamber & Growth Association
Systems Service Enterprises Inc.
Trans State Airlines LLC
Trans States Holdings Inc.
Vatterott College
XTRA
Sharon Jones, director of government relations for the Missouri Association of Trial Attorneys, said in an interview that her organization was asked by one sponsor, Sen. Rob Mayer, R-Dexter, to negotiate with Enterprise to try to come up with a compromise bill.
"It has been a one-company bill since 2005," said Jones.
Former State Sen. Joan Bray, D-University City, agreed. ' "It was called the 'Enterprise bill,'" she said. "The motivation was very well known."
Mayer did not respond to a request for comment.
In addition to having to wait until the illegal act is committed, the bill would weaken whistleblower protections in three other ways:
The whistleblower would have to prove that the act he complained about was actually illegal, not just that he believed in good faith that it was illegal.
The whistleblower would have to prove that blowing the whistle was "a motivating factor" in the firing instead of just "a contributing factor." To show it is a motivating factor the whistleblower has to show that it was roughly 50 percent responsible, rather than 33 percent.
Damages to a successful whistleblower are capped at from $50,000 to $300,000, whereas current law contains no caps.
Reel, the Enterprise vice president, said it was unfair to say that only Enterprise supported SB 188. He noted that the bill, and its House version, HB 205, have the support of 50 business and governmental organizations.
The whistleblower provisions are part of a much broader piece of legislation that makes it harder for victims of discrimination to win suits under the state human rights law.
The Dunn decision is not the only state court discrimination case that would be overturned by the legislation, Reel noted. The bill names several age and disability decisions it would also overturn.
The entire bill has the support of the Missouri Chamber of Commerce, which includes it as one of its "Fix the Six" bills to promote more jobs in the state. A spokesperson for Gov. Jay Nixon said the governor does not comment on bills during the legislative process.
Coming up: Weakening Missouri's Human Rights Act.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. To reach him, contact Beacon issues and politics editor Susan Hegger.
Posted 12:22 pm, Fri., 3.25.11
When legislators or lobbyists talk about a bill in the Missouri General Assembly that would weaken protection for whistleblowers, they often call it the "Enterprise bill."
The reason is that Enterprise Rent-a-Car of Clayton has made it a top legislative priority for the past five years, ever since the firm lost a whistleblower lawsuit filed by its fired corporate comptroller, Thomas P. Dunn.
The Senate-passed version of the whistleblower provision is expected to come up in the House soon after the members return from recess. The bill would remove whistleblower protection from an employee who warned a company it was about to violate a law. Under the bill, whistleblower protection would kick in only after the company had actually violated the law. So a whistleblower would not be protected while trying to prevent illegal conduct.
"Why would anyone want to wait until a nuclear plant melts down or Deepwater Horizon blows up before extending protection to a whistleblower who could prevent a disaster like that?" asked Matthew Ghio, one of the lawyers who represented Dunn. "Dunn blew the whistle (at Enterprise) before any of the accounting scandals at Enron or WorldCom that involved Arthur Andersen. There still would be an Arthur Andersen today if Tom had worked there."
Dunn testified that he was fired after taking the position that Enterprise was not following the accounting principles required of a public company. At the time of the dispute, Enterprise was planning to go public, although it later decided against that course. To go public, it needed Dunn to attest to the company's adherence to generally accepted accounting principles. If the legislation now favored by Enterprise had been law when Dunn challenged his firing, Enterprise would have won the case.
PERSONAL AFFRONT
Lawyers and lobbyists familiar with the court case and subsequent legislative proposals from the firm say that some Enterprise executives took the case personally.
Friends and associates of Lisa VanAmburg, Dunn's main lawyer at the time, say that Donald L. Ross, president of Enterprise Rent-A-Car Canada Limited, opposed VanAmburg for a judgeship because of her role in the case. Ross is a member of Missouri's Appellate Judicial Commission.
Raymond T. Wagner, vice president of government and public affairs for Enterprise, has led the company's effort to pass the bill during the past several legislative sessions, lawyers and lobbyists say.
Neither Ross nor Wagner was available for comment. Gordon Reel, assistant vice president for government and public affairs, said the company's main aim was to "clarify the law in regard to whistleblowers and set the right standards for public policy."
Reel said that Missouri's whistleblower protections are based on case law decided by the courts, not statutory law passed by the legislature. He maintained that the court in the Dunn case had departed from the legal interpretation that had prevailed in previous decades.
"Recent court decisions had been all over the map, not setting out clear standards. We felt like ... we should settle this once and for all."
Reel said critics try to "sensationalize" the issue by citing examples of a nuclear reactor meltdown or the Deepwater Horizon disaster. If either a nuclear company or BP committed illegal acts before meltdowns or explosions, a whistleblower would be protected under SB 188 for blowing the whistle before disaster struck, he said.
Reel said he was unable to comment on Ross's later encounter with VanAmsburg relating to the judgeship.
Ghio, Dunn's lawyer, said the Dunn decision, not the Enterprise bill, was consistent with past law on whistleblowers. "He cannot point to one Missouri public policy case prior to Dunn that held a whistleblower was only protected if the crime had occurred or the violation of a statute, rule or regulation had happened," he said. "Nearly all whistleblower protection statutes use a reasonable or good faith belief standard to afford the whistleblower protected status."
REFUSING TO SIGN OFF
The Enterprise case predates the famous accounting scandals of the past decade. Here is the sequence of events based on a 2005 opinion by Judge Booker T. Shaw of the Missouri Court of Appeals for the Eastern District:
In 1999, Enterprise was making preparations to go public. This required Dunn, the corporate comptroller, to attest that Enterprise was complying with the generally accepted accounting principles required of all public firms.
At the time, Enterprise was depreciating its cars at the rate of 2 percent per month. That rate, which overstated the depreciation, was permissible for privately held firms like Enterprise, but it did not meet generally accepted accounting principles required of public companies.
John O'Connell, Enterprise's chief financial officer and Dunn's boss, told Dunn that Jack Taylor, the company's founder, and his son, Andy, the president and CEO, were not going to change the depreciation policy. Dunn maintained that because of the depreciation policy he could not give the needed compliance statement. Shortly thereafter, Dunn was put on probation. He was fired in January 2001 and then sued for being discharged for his whistleblowing activities.
Company executives testified at the trial that Dunn had been a domineering boss, unpopular with his subordinates and had been fired for that reason. His actions relating to the accounting policies had nothing to do with it, they maintained.
A key issue was whether the accounting issue came up at a late 2000 board meeting at which the public offering was discussed. The meeting occurred just before Dunn was fired. Enterprise officials testified that the issue did not come up and minutes of the meeting appeared to back up that view.
But lawyers for Dunn found an outside director who contradicted this testimony. He was Byron Trott of the Chicago office of Goldman Sachs.
Ghio recalled it this way in a recent email: "They all (Enterprise executives) said the accounting issues weren't discussed but Trott had notes from the meeting - that he attended by conference call because he was snowed in in Chicago and could not travel to STL for the meeting -- where the three accounting issues that Tom had been fighting for a year were discussed. He even produced the power point slides for the board to prove it."
VanAmburg gave a tough closing argument in which she said that Enterprise officials, including Ross, had not told the truth about the board meeting. A jury returned a $4 million verdict, later set aside by the trial court for technical legal reasons.
The case was appealed to the state court of appeals, which ruled against Enterprise's theory of the law. Enterprise maintained that, because Dunn never had violated the law and the company never had gone public, he could not claim to have been discharged for whistleblowing. An illegal act must occur if a discharged employee is to claim whistleblower status, it maintained.
Judge Shaw disagreed, concluding that an employee fired for objecting in advance to practices he reasonably believes violate a public policy - such as security law - should be protected from firing.
The case would have gone back for a new trial, but the company settled. The terms of the settlement are confidential and Dunn agreed to confidentiality as part of the deal.
ANGER LINGERS
VanAmburg became a circuit judge not long after the trial. In 2009, she applied for an appellate judgeship. As part of that process, she had an interview with Enterprise's Ross, who had been appointed to the Appellate Judicial Commission by former Gov. Matt Blunt. Ross was a citizen member of the commission, which is part of the nonpartisan court plan.
After that Sept. 15, 2009, meeting with Ross, VanAmburg complained to associates that Ross had cited the Enterprise case as a reason he would not support her for the judgeship. She told legal associates that Ross complained that her closing argument was unethical and unfounded and occurred when Ross's wife was sitting next to him in the courtroom. Ross vowed that even though he was only one vote on the judicial commission he would fight like hell to block her, VanAmburg told her friends.
Van Amburg declined comment. She did say, however, that "I can say I intend to apply again and I am considering asking him to recuse himself."
THE 'ENTERPRISE BILL'
Year after year since the 2005 settlement, a bill supported by Enterprise has been introduced in the legislature to enact Enterprise's view of the law.
Companies supporting SB 188 and HB 205
American Dehydrated Foods Inc.
Anheuser-Busch
Associated Industries of Missouri
AT&T
Boeing
Brown Shoe
Bunge North America
Charter Communications
Covidien
Edward Jones
Emerson
Enterprise Holdings
Express Scripts
Firmenich
GoJet Airlines LLC
Graybar Electric
Greater Kansas City Chamber of Commerce
Macy's
Missouri Cable Telecommunications Association
Missouri Chamber of Commerce & Industry
Missouri Municipal League
Missouri Restaurant Association
Missouri Retailers Association
Missouri School Boards Association
National Federal of Independent Business
Peabody Energy
Schnuck Markets Inc.
Shop 'N Save Warehouse Foods INC.
Smurfit-Stone Container Corp.
Solae
Solutia
Springfield Area Chamber of Commerce
St. Louis Regional Chamber & Growth Association
Systems Service Enterprises Inc.
Trans State Airlines LLC
Trans States Holdings Inc.
Vatterott College
XTRA
Sharon Jones, director of government relations for the Missouri Association of Trial Attorneys, said in an interview that her organization was asked by one sponsor, Sen. Rob Mayer, R-Dexter, to negotiate with Enterprise to try to come up with a compromise bill.
"It has been a one-company bill since 2005," said Jones.
Former State Sen. Joan Bray, D-University City, agreed. ' "It was called the 'Enterprise bill,'" she said. "The motivation was very well known."
Mayer did not respond to a request for comment.
In addition to having to wait until the illegal act is committed, the bill would weaken whistleblower protections in three other ways:
The whistleblower would have to prove that the act he complained about was actually illegal, not just that he believed in good faith that it was illegal.
The whistleblower would have to prove that blowing the whistle was "a motivating factor" in the firing instead of just "a contributing factor." To show it is a motivating factor the whistleblower has to show that it was roughly 50 percent responsible, rather than 33 percent.
Damages to a successful whistleblower are capped at from $50,000 to $300,000, whereas current law contains no caps.
Reel, the Enterprise vice president, said it was unfair to say that only Enterprise supported SB 188. He noted that the bill, and its House version, HB 205, have the support of 50 business and governmental organizations.
The whistleblower provisions are part of a much broader piece of legislation that makes it harder for victims of discrimination to win suits under the state human rights law.
The Dunn decision is not the only state court discrimination case that would be overturned by the legislation, Reel noted. The bill names several age and disability decisions it would also overturn.
The entire bill has the support of the Missouri Chamber of Commerce, which includes it as one of its "Fix the Six" bills to promote more jobs in the state. A spokesperson for Gov. Jay Nixon said the governor does not comment on bills during the legislative process.
Coming up: Weakening Missouri's Human Rights Act.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. To reach him, contact Beacon issues and politics editor Susan Hegger.
Tuesday, March 22, 2011
Courage: Doing the Right Thing, Even When It's Hard
This particular blog is intended for the legislators considering SB 188 and HB 205. I imagine that people don't run for public office unless they have a desire to seek the public good. It is inn the context of seeking the public good that I write this.
There is one very satisfying aspect of representing people in employment discrimination and whistle-blower cases, representing a person who has found his or her voice, a person who taps into the braver part of his or her personality. Many people have beefs about something at work, but it is only a select few who we represent. It is only a select few who have been wronged legally and have the fortitude to go forward. We represent people who have real cases for illegal discrimination and whistleblowing. The ones we choose to represent have courage because it is hard to buck the status quo, to complain to or about ones boss, to rock the boat. I have always appreciated how courageous our clients are because going forward in a case like this is not easy. Discrimination and whistleblower claims are special because people who display the fortitude to go forward oftentimes go forward because they don't want what happened to them to happen to someone else. Discrimination and whistleblower cases help society; they help each one of us. If it had not been for the courage of Rosa Parks, who knows where the Civil Rights movement would have gone. If Dr. King had not taken up for Mrs. Parks, this might be a different society. If someone had come forward to report Bernie Madoff, American society would have been better.
That leads me to SB 188, which limits the rights of people to go forward and bring cases of discrimination and whistleblowing. The opposition claims, "We aren't eliminating these cases, we are just making them conform to federal standards." However, that statement is not true. Many courageous people will not be heard if this law were passed. There are three parts of the bill which are troublesome - the elimination of individual liability, caps as low as $50,000, and passing a written whistleblower law that curtails the common law.
As an example of what this bill will do, I want to tell you about a couple of cases I have had. I represented two women at a small not-for-profit business who reported that their boss was stealing from the company and downloading pornography to his computer. This business had fewer than 6 employees and was run by a board of directors. The boss was using the company credit card to purchase Christmas gifts for his family, buy electronics, etc. One woman had been with the company for 26 years, the other for 18 years. Their terminations were emotionally devastating to both women, as they had put their hearts and souls into their work. The first complainer was fired, the second was forced out. The board of directors, all physicians, condoned the conduct and refused to take action except to authorize our clients terminations. We had to sue the executive director individually. The board of directors took no action against the executive director until after the second trial. Finally, years later, he was fired. By then, there was a judgment of $350,000 against the company and $200,000 against the executive director. It was not until the second case settled in the middle of trial for $500,000 that the board took any action. My old boss used to say, "People do the right thing if you make them." The case got publicity, membership in the association which was the company faltered. The company almost went under, but it did not. When the membership learned of what the board had condoned, they were upset. The problem was management and the board and what they had condoned. Because of the lawsuits, the problems were fixed. The executive director was fired, the board began to undertake their fiduciary duty and the company was saved. If their had been a $50,000 cap on compensatory damages, which is what the new bills provides, this case probably would not have seen the light of day. The litigation took years. There is no provision for attorneys fees. I fear our clients would have thrown in the towel. The company was made better because of the lawsuit.
Likewise, I have represented women and girls in sexual harassment cases. There are not near as many sexual harassment cases today because of the brave women who brought cases before and helped companies realize that sexual harassment training is essential. Now, sexual harassment occurs in fast food restaurants with young girls. They are young and naive. They could be anyone's daughter. Without the ability to name individual defendants, these companies fold and the owners open under a different entity's name. Women are traumatized by sexual assaults and with this bill, women and girls will have little recourse. The companies fold and open under a different name. The only way to get accountability is to keep the individuals in as defendants.
I know our jury system is not perfect, but it is the best system in the world. Missouri businesses are important, but not at the expense of our civil rights. Plus, I know of not one company that has decided to locate in another state because of Missouri discrimination laws. I am asking each of the Legislators, when deciding how to vote on these bills, to dig deep and vote your conscience. It is hard to buck the system, especially when there is pressure to vote one way. This issue is important. Please be proud of your vote.
There is one very satisfying aspect of representing people in employment discrimination and whistle-blower cases, representing a person who has found his or her voice, a person who taps into the braver part of his or her personality. Many people have beefs about something at work, but it is only a select few who we represent. It is only a select few who have been wronged legally and have the fortitude to go forward. We represent people who have real cases for illegal discrimination and whistleblowing. The ones we choose to represent have courage because it is hard to buck the status quo, to complain to or about ones boss, to rock the boat. I have always appreciated how courageous our clients are because going forward in a case like this is not easy. Discrimination and whistleblower claims are special because people who display the fortitude to go forward oftentimes go forward because they don't want what happened to them to happen to someone else. Discrimination and whistleblower cases help society; they help each one of us. If it had not been for the courage of Rosa Parks, who knows where the Civil Rights movement would have gone. If Dr. King had not taken up for Mrs. Parks, this might be a different society. If someone had come forward to report Bernie Madoff, American society would have been better.
That leads me to SB 188, which limits the rights of people to go forward and bring cases of discrimination and whistleblowing. The opposition claims, "We aren't eliminating these cases, we are just making them conform to federal standards." However, that statement is not true. Many courageous people will not be heard if this law were passed. There are three parts of the bill which are troublesome - the elimination of individual liability, caps as low as $50,000, and passing a written whistleblower law that curtails the common law.
As an example of what this bill will do, I want to tell you about a couple of cases I have had. I represented two women at a small not-for-profit business who reported that their boss was stealing from the company and downloading pornography to his computer. This business had fewer than 6 employees and was run by a board of directors. The boss was using the company credit card to purchase Christmas gifts for his family, buy electronics, etc. One woman had been with the company for 26 years, the other for 18 years. Their terminations were emotionally devastating to both women, as they had put their hearts and souls into their work. The first complainer was fired, the second was forced out. The board of directors, all physicians, condoned the conduct and refused to take action except to authorize our clients terminations. We had to sue the executive director individually. The board of directors took no action against the executive director until after the second trial. Finally, years later, he was fired. By then, there was a judgment of $350,000 against the company and $200,000 against the executive director. It was not until the second case settled in the middle of trial for $500,000 that the board took any action. My old boss used to say, "People do the right thing if you make them." The case got publicity, membership in the association which was the company faltered. The company almost went under, but it did not. When the membership learned of what the board had condoned, they were upset. The problem was management and the board and what they had condoned. Because of the lawsuits, the problems were fixed. The executive director was fired, the board began to undertake their fiduciary duty and the company was saved. If their had been a $50,000 cap on compensatory damages, which is what the new bills provides, this case probably would not have seen the light of day. The litigation took years. There is no provision for attorneys fees. I fear our clients would have thrown in the towel. The company was made better because of the lawsuit.
Likewise, I have represented women and girls in sexual harassment cases. There are not near as many sexual harassment cases today because of the brave women who brought cases before and helped companies realize that sexual harassment training is essential. Now, sexual harassment occurs in fast food restaurants with young girls. They are young and naive. They could be anyone's daughter. Without the ability to name individual defendants, these companies fold and the owners open under a different entity's name. Women are traumatized by sexual assaults and with this bill, women and girls will have little recourse. The companies fold and open under a different name. The only way to get accountability is to keep the individuals in as defendants.
I know our jury system is not perfect, but it is the best system in the world. Missouri businesses are important, but not at the expense of our civil rights. Plus, I know of not one company that has decided to locate in another state because of Missouri discrimination laws. I am asking each of the Legislators, when deciding how to vote on these bills, to dig deep and vote your conscience. It is hard to buck the system, especially when there is pressure to vote one way. This issue is important. Please be proud of your vote.
Sunday, March 20, 2011
The Rise and Fall of a Mayor: An Illustration of the Importance of the MHRA
This is the story of how one woman brave enough to fight with Missouri discrimination laws on her side kept her boss a one term mayor. Ruth Bates filed a lawsuit for harassment, race discrimination and retaliation against her boss, the mayor of Kansas City, his wife and the city. Without her courage and without the teeth of the Missouri Human Rights Act, Mayor Funkhouser probably would have been reelected, since every first term mayor in Kansas City has been reelected for the past 90 years or so.
The federal discrimination statute, Title VII, did not get teeth until 1991, when Congress amended the law to allow for jury trials and provided that a jury could award compensatory and punitive damages. Missouri's human rights law got teeth in 2003, when the Missouri Supreme Court decided that Missouri employees had a constitutional right to a jury trial in discrimination cases. State ex rel Diehl v. O'Malley, 95 S.W.3d 82 (Mo. 2003). Even though Title VII and the Missouri Human Rights Act (MHRA) prohibited unlawful discrimination in the 1960's, it was not until recent times that either of these statutes have had meat. Since 1991 sexual harassment has practically been eradicated in the workplace, employers have discrimination policies, equality in society has improved.
The MHRA provides that individuals can be sued and that punitive and compensatory damages are unlimited against employers, including government employers. These parts of the statute are currently under attack in the Missouri Legislature. This story shows the importance of enforcing the Missouri statute as it now stands.
Ruth Bates is a quiet, hard-working college-educated woman living in Kansas City, Missouri. Before the mayoral elections in 2007, she receives a phone call from Mark Funkhouser asking her to help him get elected as mayor. Ruth knows Funkhouser because he worked for the city with her husband and their children had been friends. She agrees and works hard on the campaign and asks for and receives a job in the Mayor's office. Unbeknownst to Ruth, when she hires in to work at the mayor's office, she is earning less than one half the salary of any of the male employees hired from the campaign to work in the office. She also discovers that the mayor's wife, who has the mouth of a sailor, is the de facto supervisor of the office. Ruth is African-American and the mayor's wife, on multiple occasions, calls Ruth, "Mammy," and makes crude sexual remarks. Ruth complains of the pay disparity to her actual supervisor, files an EEOC charge, and is ultimately fired from the Mayor's office and told she can be a clerk in the water department. Ruth files a lawsuit for retaliation and discrimination.
The problem with suing an elected official is that there is no one in the government who is the official's boss, except the voters. Generally, voters don't have access to what an elected official is really like and whether or not the elected official breaks discrimination laws. Without discrimination lawsuits, and an informed and active press, an employee who has suffered discrimination has little recourse against an elected official. In Ruth's lawsuit, we (I was her lawyer) sued not only the City of Kansas City, but also the mayor himself and his wife. Under the proposed amendments to the statute, neither the mayor nor his wife would be in any way personally liable for their actions.
Ruth's initial goal before filing a lawsuit was to get fair pay in light of the salaries of the men, and to get the sexual and racial comments to stop. Ruth did not want to work with the mayor's wife. There is a Missouri constitutional provision prohibiting nepotism. But, this illustrates the dilemma of having constitutional provisions or statutes which are not enforced. The city council passed a volunteer ordinance, which was declared unconstitutional. However, no one would raise the nepotism issue who had the ability to do so (e.g. prosecutor). Ruth asked for very little money, just for a raise and to have the mayor leave his wife at home. The mayor stated he would not leave his wife at home, so the case was not settled.
Ruth tried informally to talk to the mayor's wife to try to make the mayor's office a place she could work. The meeting became very contentious. It was clear to Ruth her only alternative for justice was to file a lawsuit. We asked the EEOC for a right to sue letter, which is required to file a lawsuit, and began to prepare the lawsuit in Missouri court. But, even before we can file the lawsuit, the mayor fires Ruth from the mayor's office.
I filed the lawsuit. This lawsuit was different than any other lawsuit I have ever filed. The Mayor had no boss and no one to tell him to comply with the law. He and his wife were angry to be a part of a lawsuit. The press got hold of the petition and published it in the paper. Almost every deposition was published by the Kansas City Star. The real bosses of the mayor, the voters, were being educated about what was going on in the mayor's office.
Ruth Bates was never one to seek attention or publicity. She shies away from the press. It is hard on a private person to have so much notoriety. It takes a great deal of courage to go forward and Ruth and I had no idea what Ruth was to encounter. The depositions are a matter of public record. In my opinion, the depositions did not go well for the mayor and his wife. I negotiated with the lawyer representing the mayor's wife, who had an insurance company that was paying for the defense, and settled with her for $45,000. She went on record stating how horrified she was with the insurance company because she claimed she had done nothing wrong.
The City is obligated under its charter to pay for its exposure and the exposure of the City. The City's lawyer approached me about settlement and we agreed on an additional $135,000. Ruth was satisfied, because she stood up for herself and others and wanted to get on with her life. All we needed was the approval of the City Council. Normally, this was an easy process. Not with this Mayor. The Mayor had so antagonized the City Council, that they would not approve the settlement because they were angry at what he was putting the City through. The City Council, in a three hour televised open council meeting told the mayor that if he was so adamant he and his wife had done nothing wrong, they wanted a trial. The Mayor repeatedly entreated the Council to agree to the settlement.
I was frustrated that it looked like Ruth was being used as a political pawn. The Mayor's individual lawyer, who was paid by City taxpayers, came to me and said that the Mayor could pay $35,000 out of his own budget and Ruth could receive a suitable job within the City and we could still proceed against the City. My frustration with the politics of the City was nothing to compare to what happened next.
As soon as the Mayor thought he was personally off the hook, he showed his true colors. The Mayor issued a vile and defamatory press release against Ruth, stating she had said horrendous things about the Mayor's opponent, that she had really wanted to borrow money from the mayor, etc. Ruth was crushed by this retaliation. The Mayor did not stop there, though. He then, along with his lawyer, called a press conference covered by all local news stations and the newspaper stating horrendously false things about Ruth. The Mayor's hubris and vengefulness was his downfall. Rather than having the effect the Mayor had hoped, the public, i.e., voters, rallied behind Ruth. There was no settlement with the Mayor, no job in City Hall for Ruth.
We prepared for trial. On the eve of trial, the Mayor finally produced items from his computer which we had been asking for for months. One item was particularly illuminating. The Mayor's wife had decided to write a book about their time in the Mayor's office. In that manuscript, which read like a diary, the Mayor's wife poured her hatred of Ruth and other employees in the Mayor's office. This manuscript was published in the Kansas City Star. In fact, the document gave rise to another lawsuit by another employee who was fired by the Mayor. That lawsuit was settled days before the primary.
Armed with the depositions, the documents, and the manuscripts, Ruth was ready to go to trial. The day before jury selection was to begin, the City Council approved an offer to Ruth of $550,000. This combined with the $45,000 received from the Mayor's wife, amounted to $595,000. Ruth Bates initially would have settled for less than $20,000, a pay increase, and for peace at work.
The Mayor and his wife have consistently declared they did not do anything wrong. In February 2011 the Mayor ran for reelection. He didn't survive the primary. For the last 80 or 90 years, Kansas Citians have always loved their mayors. Every mayor, until this recent election, was voted in for a second term. Not this mayor. The mayor's "bosses," the electorate, spoke. Still the Mayor and his wife believe they have not done anything wrong.Mayor interview 2/11 with Chris Hernandez
Why is this important now? The Missouri Legislature has bills before it, HB 205 and SB 188, which will cripple the MHRA. Even though civil rights laws have been on the books for over 50 years, they did not become effective until they got teeth. In 2003, the MHRA got teeth when the Missouri Supreme Court ruled that citizens had the right to jury trials under the statute. Now, the proposed amendments, want to do away with individual liability, take away punitive damages against governments, and limit damages for pain and suffering and punitive damages to anywhere between $50,000 to $300,000. If these amendments had been in effect, Ruth Bates would not have got justice. Perhaps, the voters would have reelected Mayor Funkhouser. The result would not have been good for the citizens of Kansas City.
Thursday, March 17, 2011
Vote No on SB 188 - Tell the Governor
VOTE NO ON SB 188!
WHAT SB 188 WILL DO TO MISSOURI WORKERS -
• Dillutes a 50 year old statute passed during the Civil Rights Movement protecting against religious, age, race, sex, disability discrimination
• Forces Missouri workers into federal court in St. Louis or Kansas City with federal, not Missouri law . Federal courts throw out worthwhile cases, that's why big business wants the cases there.
• Places 20 year old federal caps on discrimination claims for even the most egregious sexual misconduct at work
• Removes individual liability for racists, sexual predators, harassers at work
• Removes governmental accountability through punitive damages for the most heinous conduct
WHAT SB 188 WILL DO TO MISSOURI WORKERS -
• Dillutes a 50 year old statute passed during the Civil Rights Movement protecting against religious, age, race, sex, disability discrimination
• Forces Missouri workers into federal court in St. Louis or Kansas City with federal, not Missouri law . Federal courts throw out worthwhile cases, that's why big business wants the cases there.
• Places 20 year old federal caps on discrimination claims for even the most egregious sexual misconduct at work
• Removes individual liability for racists, sexual predators, harassers at work
• Removes governmental accountability through punitive damages for the most heinous conduct
Wednesday, March 16, 2011
An Editorial Response by Karen Howard
I read with great alarm Daniel Mehan’s op-ed in the KC Star about Senate Bill 188. Not only are Mr. Mehan’s comments highly inaccurate, they are misleading and fail to inform the public as to the true impact of Senate Bill 188 on Missouri citizens. Mr. Mehan’s misguided comments are are just the tip of the iceberg as to what is actually occurring in Missouri in the current legislative session, and that is, many Missouri legislators, at the behest of big business are very quietly destroying the rights of Missouri citizens, hoping Missouri citizens will not catch on until it is too late.
To be direct, what happened in Wisconsin is what is happening in Missouri. The only difference is that the erosion of our rights by the business lobbyists and their “paid for” legislators in Missouri are doing it much quieter than in Wisconsin. The business lobbyists and their paid for legislators are quickly and quietly attempting to pass bills which destroy Missouri citizens’ rights, hoping Missouri citizens will not notice.
How did this happen? Prior to the legislative session, big business interests including the Missouri Chamber of Commerce (its president is Mehan), targeted several areas to weaken and destroy the rights of Missouri citizens. These areas include using business’ clout and money to get bills passed which reduce corporations’ responsibility for paying the franchise tax, reduce the minimum wages of Missouri workers, restricting the rights of Missouri workers to seek compensation for work-related injuries, making Missouri a right to work state, and importantly, destroying the Missouri Human Rights Act, which provides protection to Missouri workers.
SB 188 is the bill which will destroy the strong enforcement provisions of the Missouri Human Rights Act. Senate bill 188 makes it easier for employers and the government to fire employees because of their religious beliefs, disability, race, age and sex. SB 188 lets the individual boss or sexual harasser completely off the hook for discriminating and retaliating. If SB 188 passes, it will be harder, if not impossible for employees to prove discrimination. It gives the individual wrong-doer, including workplace sexual predators a free pass to do it over and over, without accountability.
It is important to realize, that even though we do not want to believe it, there are sexual predators in the workplace. They may work with you, or even may work in the same restaurant or store where your children work. They may even be working at the same school where your children attend. I have represented individuals who were assaulted in their workplace by predators, and some have been children. The Missouri Human Rights Act helps to keep the workplace safe for Missouri citizens, including our children. Without the Missouri Human Rights Act in its current state, there is no accountability and predators can remain in the workplace. How would we all feel if a sexual predator is not held accountable and one of our own children becomes a victim? We must work hard to keep the Missouri Human Rights Act as it is stated now. The Missouri Human Rights Act helps to prevent unlawful termination. I have represented Missouri workers who were fired, once their employer found out they had cancer or some other debilitating disease or injury. I have represented Missouri workers who have been fired because they were “too old.” Those individuals have been protected by the Missouri Human Rights Act. If Senate Bill 188 is passed, employers can fire persons who are ill or disabled, or “too old”, or the wrong color or gender, without any accountability.
The effect of Senate Bill 188 on every citizen is obvious: When you or a member of your family needs these laws to protect you, the laws will no longer exist to protect you or your children. And then you will ask, what happened?
Some people may think, discrimination can never happen to me or my child, but it can. Discrimination can occur even though you are not aware of it until it actually happens to you. You show up for work one day, and without notice you are handed an empty box to put your belongings in because you have been terminated, even though you are satisfactorily performing the duties of your job. Security then walks you out the door in front of your co-workers. If SB 188 has been passed, you will have no effective recourse, because SB 188 has taken away your rights.
These business groups and the legislators who sponsor and vote for these bills are rolling back the clock on workers’ rights and safety. But they want to do it quietly - in a whisper. Not like Wisconsin, where when people found out, they came out of their homes and told the governor and republicans - NO.
Missouri citizens deserve continued protection and should not be sacrificed to the interests of big business who care only about profits and are trampling on citizens’ rights. Big business should not rule Missouri. As citizens, we need to stand up now and say NO. As voters, we need to tell our representatives to listen to all of their constituency, not just the chamber of commerce and big businesses who give these legislators large campaign contributions and who then sponsor these anti-workers bills. We need to tell our representatives to vote against Senate Bill 188 and these other bills. Voters need to tell their representatives they will vote them out if they vote for these bills. After all, every Missouri legislator was voted in by the people and given the responsibility to represent the people and not big business.
Karen Howard
To be direct, what happened in Wisconsin is what is happening in Missouri. The only difference is that the erosion of our rights by the business lobbyists and their “paid for” legislators in Missouri are doing it much quieter than in Wisconsin. The business lobbyists and their paid for legislators are quickly and quietly attempting to pass bills which destroy Missouri citizens’ rights, hoping Missouri citizens will not notice.
How did this happen? Prior to the legislative session, big business interests including the Missouri Chamber of Commerce (its president is Mehan), targeted several areas to weaken and destroy the rights of Missouri citizens. These areas include using business’ clout and money to get bills passed which reduce corporations’ responsibility for paying the franchise tax, reduce the minimum wages of Missouri workers, restricting the rights of Missouri workers to seek compensation for work-related injuries, making Missouri a right to work state, and importantly, destroying the Missouri Human Rights Act, which provides protection to Missouri workers.
SB 188 is the bill which will destroy the strong enforcement provisions of the Missouri Human Rights Act. Senate bill 188 makes it easier for employers and the government to fire employees because of their religious beliefs, disability, race, age and sex. SB 188 lets the individual boss or sexual harasser completely off the hook for discriminating and retaliating. If SB 188 passes, it will be harder, if not impossible for employees to prove discrimination. It gives the individual wrong-doer, including workplace sexual predators a free pass to do it over and over, without accountability.
It is important to realize, that even though we do not want to believe it, there are sexual predators in the workplace. They may work with you, or even may work in the same restaurant or store where your children work. They may even be working at the same school where your children attend. I have represented individuals who were assaulted in their workplace by predators, and some have been children. The Missouri Human Rights Act helps to keep the workplace safe for Missouri citizens, including our children. Without the Missouri Human Rights Act in its current state, there is no accountability and predators can remain in the workplace. How would we all feel if a sexual predator is not held accountable and one of our own children becomes a victim? We must work hard to keep the Missouri Human Rights Act as it is stated now. The Missouri Human Rights Act helps to prevent unlawful termination. I have represented Missouri workers who were fired, once their employer found out they had cancer or some other debilitating disease or injury. I have represented Missouri workers who have been fired because they were “too old.” Those individuals have been protected by the Missouri Human Rights Act. If Senate Bill 188 is passed, employers can fire persons who are ill or disabled, or “too old”, or the wrong color or gender, without any accountability.
The effect of Senate Bill 188 on every citizen is obvious: When you or a member of your family needs these laws to protect you, the laws will no longer exist to protect you or your children. And then you will ask, what happened?
Some people may think, discrimination can never happen to me or my child, but it can. Discrimination can occur even though you are not aware of it until it actually happens to you. You show up for work one day, and without notice you are handed an empty box to put your belongings in because you have been terminated, even though you are satisfactorily performing the duties of your job. Security then walks you out the door in front of your co-workers. If SB 188 has been passed, you will have no effective recourse, because SB 188 has taken away your rights.
These business groups and the legislators who sponsor and vote for these bills are rolling back the clock on workers’ rights and safety. But they want to do it quietly - in a whisper. Not like Wisconsin, where when people found out, they came out of their homes and told the governor and republicans - NO.
Missouri citizens deserve continued protection and should not be sacrificed to the interests of big business who care only about profits and are trampling on citizens’ rights. Big business should not rule Missouri. As citizens, we need to stand up now and say NO. As voters, we need to tell our representatives to listen to all of their constituency, not just the chamber of commerce and big businesses who give these legislators large campaign contributions and who then sponsor these anti-workers bills. We need to tell our representatives to vote against Senate Bill 188 and these other bills. Voters need to tell their representatives they will vote them out if they vote for these bills. After all, every Missouri legislator was voted in by the people and given the responsibility to represent the people and not big business.
Karen Howard
SB 188 Kills Jobs of Whistle Blowers by Marie Gockel
S. B. 188 KILLS JOBS OF WHISTLE BLOWERS BY HANDING EMPLOYERS A LICENSE TO RETALIATE.
Don’t be deceived – S.B. 188 replaces all existing protection of whistle blowers under Missouri’s common law with only the elusive protections of S.B. 188. This bill – like a wolf in sheep’s clothing – reduces those protected to employees reporting actual violations of law. S.B. 188 eliminates existing protections under Missouri common law (universally protected in other states’ Whistle Blower statutes) for employees fired for reporting in good faith what they reasonably believe to be illegal conduct.
Whistle Blowers will be silenced if only proven, actual violations of law are protected. Whistle Blowers who lose their jobs should not bear the burden of proving criminal convictions.
Don’t be deceived – S.B. 188 also leaves unprotected employees who use traditional, internal reporting channels such as owners, partners, members of boards of directors, supervisors, managers, hot lines or ethics committees, as these traditional reporting channels are not recognized in S.B. 188 as protected.
Employers who fire Whistle Blowers should not be handed a mere technical defense that the report of illegal conduct was to the “wrong” person!
Don’t be deceived – S.B. 188 is not an act to protect “small businesses” but has been promoted by Enterprise Leasing, a multi-million dollar business. Enterprise has tried to change the law for the past six years since a jury found it guilty for retaliatory firing of an accountant who “snitched” when Enterprise told him to juggle their numbers on an accounting report being used for investors and potential lenders. Basically, Enterprise attempted an ENRON, got caught by the accountant, then fired him for blowing the whistle and refusing to comply with its directives. Not only did a jury find Enterprises guilty and awarded substantial damages, the Missouri Court of Appeals agreed in Dunn v. Enterprise Leasing Company, 170 S.W.3d 1 (Mo. App. 2005) and Enterprise has tried to change the law since then.
Missouri citizens who prevent companies like Enterprise from breaking the law deserve our continued protection and should not be thrown to the wolves.
Don’t be deceived – S.B. 188 imposes statutory caps on punitive damages borrowed from 20 year old federal law, on top of already existing caps for punitive damages. Unlike other discrimination laws, Whistle Blowers must pay their own attorneys’ fees to pursue their cases. With 20 year old damage caps, the fear of losing one’s job for speaking out, pro-employer loopholes and the reality of footing the attorneys’ fees and costs of a lawsuit, S.B. 188 erases any incentive for Whistle Blowers to speak out against wrongdoing.
S.B. 188 eliminates incentives to report wrongdoing for fear of being fired without protection and removes incentives to pursue meritorious lawsuits. S.B. 188 favors “killing the messenger.”
Don’t be deceived -- S.B. 188 throws to the wolves vigilant government employees who report taxpayer fraud and wasteful spending, vigilant employees who report employers who break our immigration, securities, banking and other laws, vigilant teachers who report fraudulent spending by their school districts, vigilant nurses who report patient abuse, neglect or Medicare/Medicaid Fraud and Abuse, and others deserving of protection.
ASK THE GOVERNOR TO VETO S.B. 188
Tuesday, March 15, 2011
SB 188 - Tell Governor Nixon It Is Bad for Missouri by Amy Coopman
ACTION ALERT: MISSOURI EMPLOYEE RIGHTS ARE ON THE ROPES
You need to know the Missouri Senate has passed SB 188, a bill that hurts Missouri employees, and the House is going to vote soon. The bill will likely end up on the Governor’s desk in a matter of days.
Please contact Governor Nixon and tell him why SB 188 is bad for Missouri.
Governor Jay Nixon
216 State Capitol
P.O. Box 720
Jefferson City, MO 65102
Phone: (573) 751-3222
Phone: (573) 751-3222
Fax: (573)751-1495
Email: mogov@mail.mo.gov
SB 188 is BAD FOR MISSOURI. WHY?
- This bill lets employers fire employees because of their religious beliefs, race, disability, age and sex. Even worse, it gives the individual wrong-doer, including workplace sexual predators, a free pass to do it over and over, without accountability.
- The bill will let government agencies fire employees because of their age or race or sex, and pay no penalty, even though non-government employers have a penalty. Now is not the time to make government less accountable.
- SB 188 will make it possible for employers to hide a firing based on discrimination-- they will limit financial compensation to individuals and allow businesses to budget just how much discrimination they are willing to tolerate.
- Under SB 188, an employee who brings a lawsuit in Missouri’s state court when he is fired due to a disability or age can find himself in front of a federal judge far from where he lives and works. His Missouri dispute would wind up with a panel of Washington-appointed judges from outside Missouri, not accountable to Missouri voters. Now is not the time to give Washington, DC more power over Missourians.
- The bill will threaten the religious liberty of Missouri citizens. It significantly limits and weakens the “whistle-blower” protections that ensure that front line employees, people with the best information and knowledge about activities that this Legislature has said are illegal, can report illegal conduct by their employers without fear of losing their jobs and their ability to support their Missouri families.
- The bill lets employers have the upper hand more than ever by making it harder for employees to prove discrimination.
- SB 188 lets the individual boss or sexual harasser completely off the hook for discriminating and retaliating. People should be accountable for their actions.
- The bill reverses the cases employees have won in court, making it easier for employers to win in the future.
- The bill will take cases out of Missouri state courts and give them to federal judges, sometimes far away from where you live and work. Federal judges are appointed for life, and are not accountable to you like Missouri state court judges are.
- The bill lets the State of Missouri, and other governmental employers, purposely discriminate without any penalty, so they can repeatedly violate the law.
- The bill limits damages to those set by federal law 20 years ago.
- Most of the big businesses that support SB 188 aren’t even Missouri corporations, but are from Delaware or Ohio. But they come to Missouri and ask for special treatment. This is not fair to small business in Missouri.
- Big businesses want an easier time firing Missouri workers, regardless of their age, religion, disability or gender. Big business wants an easier time firing Missouri workers when they get “too old,” become disabled or get pregnant, or when a new boss doesn’t want people of color. And this somehow helps create jobs?
************************************************************************************
- Please take a couple minutes –today – to tell Governor Nixon that SB 188 is bad for Missouri.
- How to Reach the Governor:
Governor Jay Nixon
216 State Capitol
216 State Capitol
P.O. Box 720
Jefferson City, MO 65102
Phone: (573) 751-3222
Jefferson City, MO 65102
Phone: (573) 751-3222
Fax: (573)751-1495
Email: mogov@mail.mo.gov
Monday, March 14, 2011
THE MODERN VERSION OF THE 1960's LUNCH COUNTER by Marie L. Gockel
THE MODERN VERSION OF THE 1960's LUNCH COUNTER
Senator Brad Lager, the sponsor of S.B. 188, during the Senate debate, threw out the proposition that the federal Civil Rights Act of 1964 was good enough for Dr. Martin Luther King, and therefore, it should be good enough for Missouri law. The Senator, who likely never marched or held any sign for civil rights based on his age alone, acted as if he and Dr. King were in the same room when Lyndon Baines Johnson signed Title VII into law.
Yet Dr. King certainly would never have dreamed the many travesties delivered by our federal courts would be part of the Civil Rights Act of 1964. Using Dr. King’s legacy in support of S.B. 188 is perverse and offensive. Why? The best way is to “show you” examples. While the list could go on and on, below are just three examples of how meritorious cases have fared in federal court – about the same way that African-Americans who wanted to be served at lunch counters in Alabama and Mississippi were treated in the 1960's – tossed and thrown out the proverbial door.
Jackson v. Flint Ink N. Am. Corp., 370 F.3d 791, 793-96 (8th Cir. 2004), modified on reh'g by 382 F.3d 869 (8th Cir. 2004). The 8 th Circuit affirmed the dismissal of this case and found that no racially hostile work environment existed, and where managers and coworkers referred to plaintiff as "that damn n____" and "n____"; used the phrases "damn black," "n____-rigging," and "f__ing n_____"; stated "[w]e don't listen to that damn black music around here, n___ shit, radio"; and there was evidence of graffiti of a burning cross with the letters "KKK" surrounding it.
Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 843-44 (8th Cir. 2002). This case dismissed, finding that no racially hostile work environment existed where plaintiff had been told by a coworker on three occasions that another employee had used a racial epithet in referring to plaintiff; on two other occasions, plaintiff heard about racial epithets directed towards other African-American employees; there were graffiti drawings of "KKK," a swastika, and a hooded figure; and copies of a racially derogatory poem were "strewn about the plant."
LeGrand v. Area Resources for Community and Human Services, 394 F.3d 1098 (8th Cir. 2005). The following conduct was deemed not sufficiently severe or threatening to establish a hostile work environment based on sex under federal law and therefore, the case was dismissed: (1) Father Nutt asked LeGrand to watch pornographic movies and masturbate together to relieve stress; (2) Father Nutt suggested LeGrand would advance within the company if LeGrand watched the movies and performed sex acts on Father Nutt; (3) Father Nutt admittedly hugged and kissed LeGrand on the mouth; (4) Father Nutt admittedly brushed LeGrand's crotch with the back of Father Nutt's hand because he thought LeGrand was stimulated by the hug; (5) Father Nutt grabbed LeGrand's buttocks; and (6) Father Nutt gripped LeGrand's thigh under the conference table at a meeting.
Let’s just be honest about the purposes of S.B. 188 – steering Missouri discrimination cases into federal courts to maximize those to be thrown out without jury trials. In other words, protecting businesses and individuals who discriminate, and not protecting the victims of discrimination. Let’s not manipulate the legacy of Dr. King as S.B. 188's sponsor.
Senator Brad Lager, the sponsor of S.B. 188, during the Senate debate, threw out the proposition that the federal Civil Rights Act of 1964 was good enough for Dr. Martin Luther King, and therefore, it should be good enough for Missouri law. The Senator, who likely never marched or held any sign for civil rights based on his age alone, acted as if he and Dr. King were in the same room when Lyndon Baines Johnson signed Title VII into law.
Yet Dr. King certainly would never have dreamed the many travesties delivered by our federal courts would be part of the Civil Rights Act of 1964. Using Dr. King’s legacy in support of S.B. 188 is perverse and offensive. Why? The best way is to “show you” examples. While the list could go on and on, below are just three examples of how meritorious cases have fared in federal court – about the same way that African-Americans who wanted to be served at lunch counters in Alabama and Mississippi were treated in the 1960's – tossed and thrown out the proverbial door.
Jackson v. Flint Ink N. Am. Corp., 370 F.3d 791, 793-96 (8th Cir. 2004), modified on reh'g by 382 F.3d 869 (8th Cir. 2004). The 8 th Circuit affirmed the dismissal of this case and found that no racially hostile work environment existed, and where managers and coworkers referred to plaintiff as "that damn n____" and "n____"; used the phrases "damn black," "n____-rigging," and "f__ing n_____"; stated "[w]e don't listen to that damn black music around here, n___ shit, radio"; and there was evidence of graffiti of a burning cross with the letters "KKK" surrounding it.
Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 843-44 (8th Cir. 2002). This case dismissed, finding that no racially hostile work environment existed where plaintiff had been told by a coworker on three occasions that another employee had used a racial epithet in referring to plaintiff; on two other occasions, plaintiff heard about racial epithets directed towards other African-American employees; there were graffiti drawings of "KKK," a swastika, and a hooded figure; and copies of a racially derogatory poem were "strewn about the plant."
LeGrand v. Area Resources for Community and Human Services, 394 F.3d 1098 (8th Cir. 2005). The following conduct was deemed not sufficiently severe or threatening to establish a hostile work environment based on sex under federal law and therefore, the case was dismissed: (1) Father Nutt asked LeGrand to watch pornographic movies and masturbate together to relieve stress; (2) Father Nutt suggested LeGrand would advance within the company if LeGrand watched the movies and performed sex acts on Father Nutt; (3) Father Nutt admittedly hugged and kissed LeGrand on the mouth; (4) Father Nutt admittedly brushed LeGrand's crotch with the back of Father Nutt's hand because he thought LeGrand was stimulated by the hug; (5) Father Nutt grabbed LeGrand's buttocks; and (6) Father Nutt gripped LeGrand's thigh under the conference table at a meeting.
Let’s just be honest about the purposes of S.B. 188 – steering Missouri discrimination cases into federal courts to maximize those to be thrown out without jury trials. In other words, protecting businesses and individuals who discriminate, and not protecting the victims of discrimination. Let’s not manipulate the legacy of Dr. King as S.B. 188's sponsor.
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