Missouri lawmakers say lax discrimination standards are keeping businesses _ and jobs _ away

Mo. Senators say easier firing means more hiring

JEFFERSON CITY, Mo. — Employers won’t create new jobs in Missouri unless they know they can more easily fire ones who aren’t performing well, according to some Republicans who have worked for years to realign state discrimination laws with federal standards.

Several Republican senators told The Associated Press that prospective employers are afraid to move into the state because a series of court rulings over the past few years has changed the standard to which companies are held and altered the burden of proof in discrimination lawsuits.

But that view is not shared by all Republican lawmakers, nor by Democrats, and legislation making it harder to win discrimination cases has stalled in the Senate.

Republican lawmakers backing the bill say workers should bear the burden of proof in discrimination claims. They say a 2003 Missouri Supreme Court decision that said workers have a right to a jury trial — instead of one before a judge — wrongly began shifting the burden to businesses. Jury instructions written after the court decision ask jurors to determine whether discrimination was a contributing factor in firings.

Previously, courts had to determine whether discrimination was a “determining factor” in a dismissal — which is still the federal standard.

Sen. Brad Lager said recent state court decisions have made it easier for employees to claim they were discriminated against, because companies can get in trouble if discrimination is even part of the reason they were fired. Also, there is no limit on how much employees can win in damages.

“It creates, unfortunately, one of the greatest opportunities for employer problems in the nation,” said Lager, R-Savannah.

Lager has sponsored legislation to require workers to prove discrimination was the reason they were dismissed, and not just a contributing factor. It also would limit how much workers can be awarded in damages — placing caps near federal levels. Unlike in federal cases, the losing side would not have to pay attorneys fees.

Similar legislation has been proposed in Missouri yearly since 2006 but hasn’t gained much traction.

Senate Democrats argue that what is friendly to employers can look hostile to workers.

“Keep in mind four decades ago it was not illegal for me to fire her because she was a woman, four decades ago it was not illegal for me to fire her because she was an African American,” Sen. Victor Callahan, D-Independence, said while pointing to fellow Democrats on the Senate floor. “As we look at this issue, are we helping the wrong doer?”

More than 1,700 discrimination complaints were filed in 2009, according to the Missouri Human Rights Commission.

Rep. Tim Flook, an employment lawyer who is chairman of the House’s job creation committee, disagreed with the argument that businesses don’t want to come to the state because they fear they will be sued.

“The litigation environment is a factor, but it’s not the determining factor in Missouri,” said Flook, R-Liberty. Companies make that decision based on skills of the population and state taxes, he said.

He argued that it has become more difficult to bring a discrimination case to court — in part because companies are being proactive by having new employees sign legal agreements to settle disputes out of court.

“Discrimination cases are going the way of the dodo,” Flook said. “It’s a tougher climate now that it was 20 years ago if you are a plaintiff in an employment case.”

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Discrimination bill is SB852

On the Net:

Legislature: www.moga.mo.gov

Missouri Human Rights Commission www.dolir.mo.gov/hr/