JEFFERSON CITY — Outraged over a controversial employment discrimination bill, numerous House Democrats abstained Monday when asked to vote on legislation that would make it more difficult to win wrongful termination cases.
Senate Bill 43 would raise the standard of proof for employment discrimination cases under the Missouri Human Rights Act, exempt supervisors and managers who are not employers from being sued for discriminatory conduct, set caps on damages awarded to successful plaintiffs, limit the avenues of redress available to plaintiffs and alter — some say “gut” — relief and protections available to whistleblowers.
Democrats who abstained knew their actions violated the House’s rules of conduct and risked penalties that could include arrest. But House Speaker Todd Richardson did not require them to vote, and the legislation passed 98 to 30.
Supporters of the bill, such as the Missouri Chamber of Commerce and Industry, say it would improve the state’s economic climate and foster job growth by protecting businesses from frivolous lawsuits. The bill fits in with the GOP aim this session of making Missouri a friendlier place for businesses.
The Pathway, a publication of the Missouri Baptist Convention, had a different favorable take due to a “religious liberty” provision in SB 43, which exempts religious organizations from suits under the Missouri Human Rights Act.
Don Hinkle, public policy advisor for the Missouri Baptist Convention, thanked Sen. Bob Dixon, R-Springfield, for his role in securing the bill’s passage. The Pathway reported that Assemblies of God, headquartered in Springfield, is among the supporters of the religious-exemption language.
“While all the floor debate and media coverage focused on the tort reform aspects of the bill, much of it seemed oblivious to the restoration of the religious exemption to the MHRA that was also contained in the bill,” The Pathway wrote, adding that the exemption could aid religious nonprofits, faith-based colleges and churches alike.
A House version of the bill, sponsored by Rep. Kevin Austin, R-Springfield, stalled after Missouri NAACP chapter president Rod Chapel was cut off while testifying by committee chair Rep. Bill Lant, R-Pineville.
At that February hearing, Chapel called the bill “nothing but Jim Crow” and has stood by the statement in public messages since then.
This message was echoed Tuesday by Cheryl Clay, president of the Springfield branch of the NAACP.
“I am very sad that the Missouri legislature chose to rush through this bill,” Clay said in a statement. “If signed by the Governor, it would make it nearly impossible to file and win a discrimination lawsuit. The Springfield NAACP regularly receives complaints from local employees who have been subjected to racially abusive incidents.”
Why Democrats protested
SB 43’s sponsor is Sen. Gary Romine, R-Farmington, who has been criticized for pushing the employment discrimination legislation because he owns a company that is being sued for employment discrimination.
The bill would not retroactively affect Romine’s pending case. In the suit involving Romine’s company, it’s alleged that a black employee was referred to as “nigger” by a co-worker and that a company office contained a map with a predominantly black neighborhood circled and annotated with the words “do not rent to.”
The bill passed the Senate in March, and several contentious hearings were held on the bill before it made its way to the House in the final week of the 2017 session.
Democrats including Rep. Crystal Quade, D-Springfield, wrote letters to the chief clerk of the House explaining that they would not vote if the bill was brought to the floor due in part to Romine’s involvement.
“While troubling on its merits, the bill represents a severe abuse of power by a sitting Senator,” Quade wrote to House clerk Adam Crumbliss. “…The bill seeks to remove legal protections under which the sponsor of this bill is currently facing litigation.
“For that reason, even entertaining or participating in a vote on such legislation would make this entire body complicit in the Senator’s unethical act of corruption and a violation of our oath. Such a vote would dishonor myself, my constituents, and this institution.”
Democrats who refused to vote could have been disciplined by Speaker Richardson, who was presiding when SB 43 was brought to the floor and when the final vote was taken at about 10 p.m. Monday.
The rules of the House include the provision that the House Speaker “may require a recorded vote on any motion” and note that House members who flaunt the voting requirement may be arrested, fined or censured.
Quade’s second letter was to Gov. Eric Greitens, a Republican, to preemptively request his veto on SB 43, which she said “would allow greater discrimination in housing and employment throughout Missouri, sending a message to our citizens and nation that Missouri tolerates discrimination.”
Quade also wrote to Greitens that the bill would “gut existing whistleblower protections” and in doing so make Missouri susceptible to corruption. She reiterated her concern about the bill including removing the ability to sue a supervisor who is not an employer and her qualm about Romine’s sponsorship.
“I appreciate your campaign promises to fight against blatant corruption in our political system, and ask that you stand with the voters of Missouri and veto this bill,” Quade concluded.
Some GOP lawmakers wanted to talk about changes to the bill before voting.
Rep. Kevin Engler, R-Farmington, immediately offered an amendment that would extend existing discrimination protections to include sexual orientation and gender identity. This legislation has been filed this year and in years past, and it’s known as the Missouri Nondiscrimination Act (MONA).
Under current law, Missourians can be fired for just cause because they are gay. For Engler and others, this situation is untenable.
Republican Rep. Tom Hannegan and Democratic Reps. Randy Dunn and Greg Razer, all of whom are gay, spoke in favor of Engler’s amendment.
According to LGBT advocacy group PROMO Missouri, the debate on the amendment was the first time the legislation had ever been debated on the House floor since an initial attempt about two decades ago.
Others, such as GOP Reps. Rick Brattin and Paul Curtman, argued against Engler’s proposal. Brattin invoked religious texts including the Bible to say that “there is a distinction between homosexuality and just being a human being” as part of his argument for opposing the MONA amendment.
Curtman said his opposition was motivated by freedom; for instance, he said he thought a Muslim shop owner should have the ability to fire a Christian employee on religious grounds. (This is illegal under current Missouri law.)
Engler withdrew his amendment before a vote was taken — any amendment could be a bill-killer this late in the session — but said he intended MONA to get a vote next year.
Rep. Shamed Dogan, R-Ballwin, supported the MONA amendment and said that the bill’s sole purpose was to make it easier to fire people. Dogan then proposed an amendment that spurred a lawyerly discussion on the meaning of the words “a” and “the.”
The current standard to prove discrimination under the Missouri Human Rights Act is that a person’s status as a protected class must be “a contributing factor” to wrong treatment, such as an employee’s firing being motivated in part on their race or sex.
In contrast, the federal standard of proof is that discrimination must be proven to be “a motivating factor” to the treatment. SB 43 would change the law to elevate the standard of proof to “the motivating factor.”
This amounts to “a huge moving of the goalposts” from previous versions of the bill, Dogan said, including the version sponsored this year by Austin.
Some bill supporters said this change simply brings Missouri in line with federal standards, but opponents said that the bill’s language — whether written intentionally or in error — makes Missouri’s standards for proving discrimination more strict than those used in federal court.
“(The) is a definite article and (a) is an indefinite article,” said Rep. Jay Barnes, a Republican attorney representing Jefferson City, who said this basic grammatical difference would mean a world of difference in the courtroom.
Dogan’s amendment failed with 94 “no” and 61 “yes” votes.
Rep. Bill White, R-Joplin, proposed an amendment to allow supervisors to be held accountable for discriminatory conduct. This amendment failed.
Barnes, who said Missouri has “the best discrimination law in the country” that would be among the worst upon passage of SB 43, tried to eliminate a portion of the bill that limits plaintiffs’ legal options and also included White’s language pertaining to supervisors. That, too, was defeated.
Rep. Kevin Austin responds
Austin, the Springfield Republican, supported this bill in a previous session and backed it again this year. He stuck with his version until the Lant-Chapel confrontation derailed it and attended late-night hearings on the Senate version of the bill
Talking with the News-Leader on Tuesday about SB 43, Austin denied cries from across the aisle that the bill was racist.
“We expected that,” Austin said. “Those same guys that are saying this is racist — they’ll sit there and eat burgers with me in the back, and we talk.” He added later, “I think they’re worried about any change.”
Austin said SB 43 was intended to bring Missouri’s legal system into balance. He said the caps on damages in the bill were generally the same as federal caps, as was the limit on individual liability.
“We’re not going out of line (to) some sort of 1956, Deep South, Mississippi, ‘we’re gonna get you’ kind of thing,” Austin said. “We’re just going in line with everybody else.”
He echoed Barnes, an opponent of the bill, in saying that Missouri’s current system favors those making claims more than those being accused. But Austin disagreed with Barnes that “the” vs. “a” would make a big difference because the bill also defines “the motivating factor” and called that argument a red herring.
“We can define words however we want,” Austin said. “It departs them from whatever Merriam-Webster have or whatever the common vernacular is. How we define it is its definition.”
Austin added that the bill could help businesses by preventing unfounded accusations of discrimination against companies. “We don’t want that to become used a sword unless you have a legitimate claim.”
At the end and going forward
At this point, Rep. Bruce Franks, D-St. Louis, read some of the racial slurs contained in the suit against Romine and said he shouldn’t be forced to vote on the measure.
In a prelude to their symbolic display, House Democrats stood while Franks spoke. During his speech, most of the seats on the Republican side of the aisle were empty as dozens of conservatives left the chamber.
“We’ve heard a lot of lawyers talk about the laws and how it reads and the intricate words,” said Franks, who is black. “…Well, the judicial system looks a little bit different when you look like me. That’s one thing that we can’t get away from.”
“…Mr. Speaker, this bill is wrong,” Franks said, during a lively speech against SB 43. “I should not be forced to press a button on this bill.”
Other Democratic lawmakers, including Quade, echoed Franks and urged Richardson, the House speaker, to forestall a vote on the bill. When he called for a vote anyway, about 30 Democrats stood by their desks instead of voting.
All Springfield-area Republicans except Rep. Lynn Morris, R-Ozark, voted for the bill.
Austin told the News-Leader on Tuesday he was under the impression that the bill was a priority for the governor. A spokesman for Greitens did not respond when the News-Leader asked Tuesday whether he would sign SB 43.
Democratic opposition is likely to continue now that the bill has passed the House. For example, some Democrats have discussed a sit-in aimed at Greitens.