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.