Missouri Legislature proposes tougher standard for employment discrimination

The legislature has sent Governor Eric Greitens (R) a bill that would make it harder to prove discrimination in the workplace.

Representative Joe Don McGaugh (photo; Tim Bommel, Missouri House Communications)
Representative Joe Don McGaugh (photo; Tim Bommel, Missouri House Communications)

Senate Bill 43 would require a former employee to prove that his or her age, race, gender, disability or ethnicity was the main reason he or she was fired rather than one among other reasons.  Republicans said the bill is needed because the courts have allowed too many cases of alleged workplace discrimination to proceed.

The House’s handler of SB 43, Representative Joe Don McGaugh (R-Carrollton), said the legislation responds to Supreme Court decisions that lowered the standard in employment discrimination cases.

“Senate Bill 43, in my opinion, isn’t even tort reform.  It’s undoing judicial activism,” said McGaugh.  “So what’s the effect of the court playing legislature?  Even the most meritless cases have to be decided by a jury.  Employers are required to spend thousands of dollars defending completely baseless claims brought by lawyers arguing anything that can contribute.”

The bill also places limits on the damages that can be awarded to successful plaintiffs, exempts from liability supervisors and managers who are not employers, and limits protections for whistleblowers.

The legislation cleared the House on a Republican-led 98-30 vote, but it had Republican opposition.

Representative Jay Barnes (R-Jefferson City) spoke against the measure’s whistleblower section.

“The proponents have not identified a problem with whistleblower law in the State of Missouri.  There is not a spate of whistleblower cases in this state,” said Barnes.  “The whistleblower portion eliminates protections for the employees most likely to know about illegal activity in their employer.”

Democrats said the legislation would make it easier for workplace discrimination to occur and go unpunished, and argue it represents a conflict of interest because its senate sponsor, Senator Gary Romine (R-Farmington), is the owner of a business that is the subject of a pending discrimination lawsuit.

Representative Bruce Franks, Junior (left), talks about SB 43 with Republican colleague Nate Tate (photo; Tim Bommel, Missouri House Communications)
Representative Bruce Franks, Junior (left), talks about SB 43 with Republican colleague Nate Tate (photo; Tim Bommel, Missouri House Communications)

St. Louis Representative Bruce Franks, Junior, read a series of racial slurs cited in that case and called the bill unacceptable.

“We’ve heard time and time again how this sets us back.  All of the forward movement we’ve done, this sets us back,” said Franks.

McGaugh said the legislation has been filed for years, long before there was a case against Romine’s company.

“If you’ve been in this body more than one year you’ve voted on this multiple times,” said McGaugh.  “Everything that we’re going to talk about today this body has seen before and we’ve talked about before.”

The House debated the bill for more than five hours Monday, rejecting five amendments, before voting to pass the bill the Senate had proposed.  It’s now up to Governor Grietens whether it will become law.

Legislature’s budget aims for transparency in settlements with the state, agency workplace environments

The legislature has passed a budget that aims to make state agencies more accountable when lawsuits against them cost taxpayer dollars.

House Minority Leader Gail McCann Beatty made creating transparency with the legal expense fund one of her priorities this session.  (photo; Tim Bommel, Missouri House Communications)
House Minority Leader Gail McCann Beatty made creating transparency with the legal expense fund one of her priorities this session. (photo; Tim Bommel, Missouri House Communications)

Lawmakers learned last fall that the Department of Corrections had reached millions of dollars in settlements in recent years with employees who had been harassed, discriminated against, and in some cases retaliated against.  Legislators said they didn’t know about apparent ongoing issues in Corrections because of how money for settlements was identified in the budget.

Settlements had come out of a single line in the budget called the legal expense fund, which had no spending limit.  That meant legislators did not know how much money was being spent on settlements each year, and agencies didn’t have to explain to the legislature what was behind lawsuits against them.

The budget for the year starting July 1 would cap that line at $16-million.  If settlements exceed that, the Office of Administration can pull up to $10-million from other funds it controls.  If that isn’t enough, OA can then take money directly from the budget of the department involved in a given settlement.

The Attorney General has said he will also report to the legislature every month on the activity of the legal expense fund.  House Budget Committee Chairman Scott Fitzpatrick (R-Shell Knob) said that’s why even if OA has to go to any of those additional places for settlement money, it must all pass through that fund.

House Budget Committee Chairman Scott Fitzpatrick (photo; Tim Bommel, Missouri House Communications)
House Budget Committee Chairman Scott Fitzpatrick (photo; Tim Bommel, Missouri House Communications)

“So it still has to go to the legal expense fund and then it has to be paid from the legal expense fund, so that shouldn’t impact [tracking that fund’s activity],” said Fitzpatrick.

Meanwhile the House has passed a bill that would require by law those monthly reports from the governor, but with the process moving slowly in recent weeks, House Democrat Leader Gail McCann Beatty (Kansas City) said she’s looking for other bills to which she can add that language.

“The Attorney General has been very cooperative and is now posting that information on his website so it is there for the first time.  I will be asking those other departments that don’t fall under the Attorney General to do the same voluntarily until we have the opportunity to actually pass this legislation,” said McCann Beatty.

Legislators believe that with the new budget provisions and reporting by the attorney general any future situations like that uncovered at Corrections will be exposed.

Meanwhile, a House subcommittee launched to investigate corrections and recommend changes in that department is close to releasing its report.

The legislature’s budget proposal is now awaiting action by Governor Eric Greitens (R).

Legislature coming down to the wire this week on FY ’18 budget proposal

The legislature’s top responsibility enters its final push this week, as Friday is the constitutional deadline for it to propose a budget for the fiscal year that begins July 1.

House Budget Committee Chairman Scott Fitzpatrick (photo; Tim Bommel, Missouri House Communications)
House Budget Committee Chairman Scott Fitzpatrick (photo; Tim Bommel, Missouri House Communications)

Beginning tomorrow, selected House and Senate members will work to negotiate a compromise between each chamber’s budget proposals.  Any compromise the two sides reach must then be voted on by 6 p.m. Friday to be sent to Governor Eric Greitens (R).

The House proposed that the state should for the first time fully support the formula for funding K-12 schools.  Early discussions in the Senate suggested it would do otherwise, but it decided to follow suit.  That was the top priority for House Budget Committee Chairman Scott Fitzpatrick (R-Shell Knob), and with both chambers agreeing on it, he says his priority now is clear.

“A balanced budget,” Fitzpatrick said.

Getting there by Friday, however, will be challenging.  The difference between the two chambers’ budget proposals is somewhere beyond $100-million.

Fitzpatrick said much of that difference is in projects the Senate added when they were planning not to fully fund the K-12 education formula.  When the Senate voted to instead fund the formula, it didn’t remove those projects.

“Now that the formula is funded, I think the projects are going to be tough to [pay for],” said Fitzpatrick.

Another substantial difference between the two proposals concerns “Es.”  For several years, legislative budget makers have used an “E” at the end of a budget line to represent an open-ended spending limit.  This was often used in places where predicting how much would be needed over the course of a fiscal year was particularly difficult, and it would allow an entity to exceed the budgeted amount if necessary.  The effort to remove Es began several years ago, and the House proposed a budget that completed that removal.

The Senate restored some Es to various places in the budget.  Fitzpatrick wants to remove those in the final compromise.  He said their presence in the Senate’s proposal also distorts how far apart the House and Senate plans are.

“So like for the budget reserve fund, we put a $25.5-million number in there.  The Senate put the E back on and made it $1, so that makes their budget actually appear $25.5-million smaller,” said Fitzpatrick.  “So really to compare apples to apples you have to add $25-million to their budget to see the difference.”

Fitzpatrick said he doesn’t know how many more such examples exist throughout the budget plans.

One line of particular importance to Fitzpatrick and others in the House is the state’s legal expense fund, which has had an E on it.  That line has been the focus of great legislative attention this year after the revelation that the Department of Corrections has settled millions of dollars in lawsuits in recent years in cases of employee harassment, discrimination, and retaliation.

With an E on that line – the line from which comes the money for all settlements with the state – Corrections never had to come before a legislative committee to explain what was behind the multiple, large settlements.  Lawmakers say that kept them in the dark as to the environment and repeated issues in the Corrections Department.

The House’s proposal replaced that line with lines in the budgets of each state agency.  That meant any future settlement would come out of the involved agency’s budget, and if it had so many that it exceeded what the legislature appropriated, it would have to explain why to lawmakers.  The Senate returned the legal expense fund to being a single line in the budget.  Fitzpatrick and House members strongly want to see the House’s version restored.

House and Senate conferees begin meeting Tuesday morning.  Their goal is to have a compromise ready for each chamber to vote on by Friday.  Failure to meet the state Constitution’s deadline could mean legislators will have to meet in a special session, after the regular session ends on May 20, to complete a budget.

House votes to require monthly reporting on settlements in cases against Missouri

The House has voted to increase transparency when lawsuits against state agencies are settled.  The legislation was prompted by the revelation that millions of tax dollars were paid out over several years in settling harassment and discrimination cases against the Department of Corrections.

Representative Paul Fitzwater (R-Potosi) carried HCB 7 on the House Floor.  (photo; Tim Bommel, Missouri House Communications)
Representative Paul Fitzwater (R-Potosi) carried HCB 7 on the House Floor. (photo; Tim Bommel, Missouri House Communications)

House Committee Bill 7 would require the attorney general to report every month to the legislature and others about how the state’s legal expense fund – the fund from which money for settlements is taken – has been used.

Those cases against Corrections came to light late last year when an article on Pitch.com detailed several of them, and outlined how employees who complained about being harassed or discriminated against were victims of retaliation by fellow Corrections staff members.

House members said after the article came out that they were unaware of the settlements because those have been paid out of a line in the budget that has no spending limit on it.  That meant departments never had to come to the legislature and justify how much their settlement agreements were costing the state.

St. Charles Republican Kathie Conway, who chairs the appropriations committee that oversees Corrections, said this bill is needed.

“This is something that needs to be in statute so that the legislature is not caught unaware of all the goings on in different departments,” said Conway.

House Democrat Leader Gail McCann Beatty hopes to prevent state employees who have complained of harassment or discrimination from having to sign gag orders as part of court settlements.  (photo; Tim Bommel, Missouri House Communications)
House Democrat Leader Gail McCann Beatty hopes to prevent state employees who have complained of harassment or discrimination from having to sign gag orders as part of court settlements. (photo; Tim Bommel, Missouri House Communications)

House Democrat leader Gail McCann Beatty (Kansas City) proposed that the reporting should cover all state agencies and not just the Department of Corrections.  She said the reporting requirements could lead the legislature to make changes in policies or laws to address issues resulting in lawsuits in other agencies.

She hopes the legislature will go further and address the signing of gag orders by state employees who complain of harassment or discrimination, as some in the Corrections cases did under the terms of their settlements.

“While we can sunshine and get this information it does not give that employee the opportunity to give their side,” said McCann Beatty.

Missouri Attorney General Josh Hawley (R) announced in March he would begin monthly reporting on the activity of the legal expense fund.  Legislators praised his decision but said HCB 7 is still needed to ensure future attorneys general will follow suit.

Hawley’s first such report comes out April 30.

HCB 7 would also require the Department of Corrections’ director to meet with the House’s committee overseeing that department twice each year to discuss issues with that department.

The House voted 150-1 to send the bill to the Senate, but only two weeks remain in the legislative session for that body to consider it.

House bill targets St. Louis ordinance, aims to protect alternatives-to-abortion clinics

The Missouri House has given initial approval to a bill that proponents say would protect alternatives to abortion agencies and their employees’ rights to assembly, religious practices, and speech.

It targets a St. Louis ordinance that the bill’s opponents say protects from discrimination women who have had abortions, use contraceptives or artificial insemination, or have become pregnant out of wedlock.

The sponsor of House Bill 174, Representative Tila Hubrecht (R-Dexter), said that ordinance penalizes agencies that refuse to hire a woman who would counsel a woman to have an abortion or refer a woman to get an abortion.

“This ordinance could also force private property owners to rent space to abortion facilities or to doctors who perform abortions, and force private employers to include abortion coverage in employee health plans,” said Hubrecht.

Hubrecht said without her bill becoming law, the St. Louis ordinance and its like could, “interfere with the mission of alternatives-to-abortion agencies and persons not affiliated with a religious organization, and obstruct their conscience rights.” 

St. Louis Democrat Stacey Newman said by nullifying the ordinance, the legislature would be allowing discrimination.

“Are you in favor of firing a woman just because she’s pregnant?  That’s what the ordinance prevents.  Are you in favor of terminating a lease just because a woman is pregnant?  Again, that’s what the ordinance prevents.  St. Louis Ordinance 70459 prohibits discrimination based on pregnancy including childbirth, and as you would suspect, these are private decisions that are none of the employee’s or a landlord’s business,” said Newman.

Newman said the bill would also protect those agencies’ dissemination of “medically inaccurate” information to women, aimed at discouraging them from having an abortion or using contraception.

“You’re saying as a government body you have the right, then, to go and interfere in other people’s personal, private health decisions and even allow them to be getting inaccurate medical care,” said Newman.

Another vote in favor of HB 174 would send it to the state Senate.