Senator Gary Romine, sponsor of SB43, prefers Federal judges over our own Missouri State Court judges. He says our own State Court judges should follow the decisions of Federal Court judges, but ignore what our own Missouri Supreme Court has said. SB43 “abrogates,” or overturns by statute, several specific Missouri Supreme Court opinions he and the corporate interests behind the bill do not like.Two weeks ago, I wrote about the Missouri Legislatures’ efforts to steal your right to a jury trial, replacing it with secret arbitration proceedings. Last week, I addressed the “Protect Corporations from Whistle Blowers Act” – wait – they call it the “Whistle Blower Protection Act,” but it does just the opposite. In my blog, I pointed out the particular unfairness of the proposed Act’s elimination of all damages that aren’t lost wages. In short, you can report your employer to the authorities for breaking all manner of laws, perhaps even saving lives in the process, get labeled a “rat” by your boss, abused by your co-workers -- but as long as you are not fired, you get nothing.Today’s topic is the Legislature’s attempt to overturn specific decisions by our Missouri Supreme Court. You may remember from school the Three Branches of Government – the Legislative Branch, the Executive Branch (in Missouri, that’s the Governor and his administration; for our country, it’s the President), and the Judicial Branch. The Legislative Branch writes the laws, the Executive Branch enforces the laws, and the Judicial Branch interprets the laws. Each is a check on the other two, making sure one Branch does not grow too powerful or act contrary to our Constitution.The Missouri Human Rights Act (MHRA) was written by the Legislative Branch. The Missouri Commission on Human Rights, part of the Executive Branch, enforces those rights, but the law also allows private attorneys to step in and enforce those rights. Employment lawyers like me are, in effect, acting as “private Attorney Generals,” who make sure the laws are enforced.Sometimes, laws do not contain specific language, and judges have to decide what the law means. For example, the MHRA did not say, one way or the other, whether a person was entitled to a jury trial if he sued under the MHRA. In State ex rel. Diehl v. O'Malley, 95 S.W.3d 82 (Mo. 2003), the Missouri Supreme Court ruled that you are, in fact, entitled to have a jury decide your claims. Fortunately, that right remains.But supporters of SB43 – including all the big corporate interests behind it – are not happy with all the Missouri Supreme’s interpretations. The Legislature wants to overturn specific cases, and take away important rights you have. The act states, in three separate paragraphs, that “the general assembly hereby expressly abrogates by this statute” these cases. “Abrogate” simply means, overturn. The result takes away some of your rights.SB43 specifically overturns Daugherty v. City of Maryland Heights, 231 S.W.3d 814 (Mo. 2007), and Thomas v. McKeever’s Enterprises, Inc., 388 S.W.3d 206 (Mo. App. W.D. 2012). Both cases say that a person has been discriminated against if, for example, their religion or race was a “contributing factor” in the decision to terminate that person. If, for example, your race or age was any part of the decision to fire you, you could bring a case. SB43 changes this law. If it is passed, SB43 will require a much higher standard – the decision to terminate will have to be “because of” your religion, race, gender, age or disability before you can bring a case.That seems like a small change, right? But here’s the difference. I’ll use age discrimination as an example. When a person is fired, the company always comes up with a reason – you were late too many times, or you broke a company rule. And those are valid reasons to fire someone, right? But what if you are, say, 57 years old, like me, and you get fired because you were late a few times -- but the 23 year old who works next to you parties every night, and comes in late more than you, and he’s not fired. That’s not fair, is it? Today, if any part of the decision to terminate is based on age – even if there may be other reasons -- you’ve proven a violation of the law. “Abrogating” those Supreme Court decisions means that you will have to show the only reason was your age.What that means is, the employer can come up with any other excuse for the termination. They could even tell the jury, “Sure, we don’t like old people working here. We’d like to see our workforce get younger. But he was late, so we fired him.” This law allows a company to be, for example, “a little bit racist,” as long as they are not “a lot racist.” In other words, it’s okay to discriminate against African Americans, or women, or people with a disability, as long as you can come up with an excuse.Which brings me to the third Supreme Court case -- McBryde v. Ritenour School District, 207 S.W.3d 162 (Mo. App. E.D. 2006). By “abrogating” this case, an employer can tell the jury that they should consider a “business judgment” in making their decision. This opens the door for the company to argue all kinds of other excuses for their discrimination.I mentioned earlier that SB43 wants our judges to follow Federal Court decisions. What the corporations are trying to do with this change is to allow your case to get thrown out of court by the judge, with something called a “summary judgment.” Statistics show that, in Federal Court, you are far less likely to ever have your day in court because of summary judgments. This is even worse than arbitrations! With an arbitration, you may have lost your right to a jury trial, but at least you get your case heard. With summary judgment, you are tossed out, without even being allowed to tell your story to a jury.There are more terrible things in SB43. Next week, I’ll tell you about how you won’t be able to recover all your damages – and you may end having to pay the other sides lawyers!
