recent decisions
Sexual Harassment/Hostile Environment/Retaliation Claims under MHRA: The Missouri Supreme Court’s decision in Hill v. Ford Motor Co., 277 S.W.3d 659 (Mo. banc 2009), impacts many facets of Missouri employment law. First, the Supreme Court, in this sexual harassment / hostile work environment / retaliation claim, held that an employee, who was suspended and directed to obtain psychiatric treatment in retaliation for rejecting her supervisor’s sexual harassment and for making a prior unrelated discrimination claim, stated a claim under the Missouri Human Rights Act (MHRA), and not under Title VII. This aspect of the Court’s decision may have a significant impact on future discrimination claims in Missouri because MHRA claims are not subject to the burden-shifting analysis that governs Title VII claims. Under the federal burden-shifting analysis, employers may escape liability by showing a legitimate, non-discriminatory reason for the employment action. Therefore, the Missouri Supreme Court’s decision may signal an increase in claims brought under the MHRA. Second, in the employer’s favor, the Supreme Court recognized the Faragher-Ellerth defense to sexual harassment claims subject to Missouri law. To prove this defense, an employer must show: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Third, the Supreme Court permitted the late joinder of parties to MHRA claims. The Court held the MHRA allows an action to be brought against a supervisor in his individual capacity even though he was not a party in the employee’s initial administrative claim before the Missouri Commission on Human Rights. The Court explained the failure to join the supervisor as a party will bar the employee’s claim only if the prior non-joinder results in prejudice. Fourth, the Missouri Supreme Court expressed its disfavor for summary judgment procedure in employment claims brought under the MHRA. The Court stated summary judgment on MHRA claims should be rarely granted because the claims almost always involve a dispute over material facts.
Retaliatory Discharge, Punitive Damages, “Me Too” Evidence, Expert Testimony on Emotional Distress: The Missouri Court of Appeals upheld a jury’s verdict for the plaintiff on a claim of retaliatory discharge for making a sexual harassment complaint. The Court, in so ruling, held the “contributing factor” standard is the appropriate standard for establishing the causation element of a retaliatory discharge claim, which element can be proven by indirect and circumstantial evidence. The Court further held a submissible claim for punitive damages is made in a retaliatory discharge claim when “the evidence and the inferences drawn therefrom are sufficient to permit a reasonable juror to conclude that the plaintiff established with convincing clarity – that is, that it was highly probable – that the defendant’s conduct was outrageous because of evil motive or reckless indifference.” The plaintiff sustains this burden by showing the defendant’s wrongful conduct was intentional and without just cause or excuse. Thus, the same evidence that supports a plaintiff’s claim that a retaliatory motive contributed to her discharge may also support the plaintiff’s punitive damage claim. The Court also held that “me too” evidence of the employer’s treatment of other employees may be relevant to support both the underlying and the punitive damage claim. Finally, the Court addressed the plaintiff’s emotional distress damage claim, holding expert testimony is inadmissible on the legitimacy of “garden variety” emotional distress. Williams v. Trans States Airlines, Inc., 281 S.W.3d 854 (Mo. App. E.D. 2009).
More Than Just a “Policy” Required for the Faragher/Ellerth Affirmative Defense in Sexual Harassment Cases: To establish the “prevention” prong of the Faragher/Ellerth affirmative defense in sexual harassment claims, the Missouri Court of Appeals held an employer must do more than have a facially-valid anti-harassment policy. Restated, the mere existence of the policy is insufficient to satisfy the employer’s burden to show that it exercised reasonable care in preventing sexual harassment. Instead, courts must consider the employer’s conduct in implementing the policy. In this case, as the employer had some information about an applicant’s termination from prior positions, the Court reversed the trial court’s summary judgment for the employer, holding the employer had an obligation to investigate the applicant’s prior acts of misconduct. Herndon v. City of Manchester, 284 S.W.3d 682 (Mo. App. E.D. 2009).
Wrongful Discharge Claim Cannot be Brought in the Guise of a Negligent Supervision Claim to Defeat Missouri’s Employment-At-Will Doctrine: Discharged employees brought a negligent supervision claim against their former employer, alleging the employer had a duty to supervise its managers to ensure they would not unfairly or unjustly -- in violation of company policy and their employment contract -- discriminate against employees so as to unjustly discharge them and cause them damage. The Missouri Court of Appeals observed the employees’ negligent supervision claim was a wrongful discharge claim in disguise. Thus, noting there was no employment contract, the Court reaffirmed Missouri’s employment-at-will doctrine and held the employees failed to state a claim upon which relief may be granted. The Court, in so ruling, explained that a contrary ruling would have undermined the at-will doctrine, observing in the past that wrongful termination claims brought by at-will employees in the guise of claims for prima facie tort, tortious interference with business expectancies, fraud, and emotional distress have failed as a matter of law. Doran v. Chand, 284 S.W.3d 659 (Mo. App. W.D. 2009).