NEW MISSOURI CIVIL INSTRUCTIONS FOR SUBMITTING CLAIMS UNDER THE MISSOURI HUMAN RIGHTS ACT TAKE EFFECT ON JANUARY 1, 2019

By Deborah F. O’Connor, Esq.

 

            On January 1, 2019, several amendments and new instructions to the Missouri Approved Instructions (Civil) Chapter 38-Employment Discrimination will take effect.  The amendments and new instructions are specifically focused on the statutory changes to the Missouri Human Rights Act.   Consequently, attorneys practicing in the areas of employment law and workers’ compensation should take particular note.  These instructions are the result of the passage of Senate Bill 43 and should clear up any confusion regarding the appropriate standard to be submitted after the passage of the bill.  For actions accruing on or before August 28, 2017 the causation standard is still “contributing factor.”  For actions accruing on or after August 28, 2017, the causation standard is the more stringent “actually played a role in and had a determinative influence on.”

 

           Senate Bill 43 states that it “abrogates all Missouri approved instructions specifically addressing civil actions brought under” Chapter 213 -Human Rights.  Consequently, the Missouri Supreme Court has determined that for actions accruing after August 28, 2017, MAI 38.03 (verdict directing-retaliatory discharge or discrimination), MAI 38.06 (verdict directing-MHRA employment discrimination), MAI 38.07 (verdict directing, disability disputed), MAI 38.08 (affirmative defense-business judgment), MAI 38.09 (damages) and MAI 38.10 (verdict form) must be used.  See MAI 38.01 (A) [018 Revision], Historical Note (2018 Revision).  

 

The amended MAI Civil Instructions include:

 

  1. MAI 38.01(A) [2018 REVISION] Verdict Directing-Missouri Human Rights Act-Employment Discrimination (for actions accruing before August 28, 2017):

 

        Chapter Title, Committee Comment and Historical Note Revision

 

       This Verdict Director still applies to actions accruing before August 28, 2017 and still contains the lesser “contributing factor” standard.

 

     2. MAI 38.01(B) [2018 REVISION] Verdict Directing-Missouri Human Rights Act-Employment Discrimination by Reason of Disability-Existence of Disability Disputed (for actions accruing before August 28, 2017):

 

      Chapter Title Revision and Committee Comment- Revision, Historical Note-New

 

        This instruction has been revised to apply to actions accruing before August 28, 2017.  For actions accruing after August 28, 2017, MAI 38.05 applies.  For actions accruing before that date, the lesser “contributing factor” standard applies to these claims.

     3. MAI 38.02 [2018 Revision] Missouri Human Rights Act-Lawful Justification (for actions accruing before August 28, 2017):

 

     Chapter Title and Historical Note-Revision

 

     This instruction has been revised to apply to actions accruing before August 28, 2017.  For actions accruing after August 28, 2017, MAI 38.05 applies.  For actions accruing before that date, the lesser “contributing factor” standard applies to these claims.

 

     4. MAI 38.03 [2012 Revision] Verdict Directing-Wrongful Discharge in Violation of Public Policy:

         

       Chapter Title and Historical Note Revision

           

      This jury instruction still includes contributing factor as outlined in Fleshner v. Pepose Vision Institute, P.C., 304 S.W.3d 81 (Mo. banc 2010) but references the Senate Bill 43 (2017) in the notes and seems to establish that modification is proper for actions accruing after August 28, 2017.  

 

     5. MAI 38.04 [2018 Revision] Verdict Directing-Retaliatory Discharge of Discrimination-Workers’ Compensation (for actions accruing on or before August 28, 2017):

 

     Chapter Title, Committee Comment -Revision, Historical Note New

           

     This instruction has been revised to apply to actions accruing before August 28, 2017.  For actions accruing after August 28, 2017, MAI 38.05 applies.  For actions accruing before that date, the lesser “contributing factor” standard applies to these claims.

 

     6. MAI 38.05 [2018 New] Verdict Directing-Retaliatory Discharge of Discrimination-Workers’ Compensation (for actions accruing on or after August 28, 2017):

 

     Instruction, Notes on use, Committee Comment and Historical Note New

           

     This is a new instruction governing the standard for retaliatory discharge involving workers’ compensation after August 28, 2017.  This articulates the stricter causation standard applicable to actions accruing after August 28, 2017 after the passage of Senate Bill 43:

Your verdict must be for plaintiff if you believe:

First, plaintiff was employed by defendant, and

Second, plaintiff filed a workers' compensation claim, and

Third, defendant discharged plaintiff, and

Fourth, plaintiff's filing of the workers' compensation claim actually played a role in and had a determinative influence on plaintiff's discharge,2 and

Fifth, such discharge directly caused damage to plaintiff.

       7. MAI 38.06 [2018 New] Verdict Directing-Missouri Human Rights Act-Employment Discrimination (for actions accruing on or after August 28, 2017):

 

     Instruction, Notes on Use Committee Comment and Historical Note, New

 

     This new instruction adopts the new causation standard “actually played a role in and had a determinative influence on such action.” To cases accruing after the effective date of Senate Bill 43 (2017).

 

     8. MAI 38.07 [2018 New] Verdict Directing-Missouri Human Rights Act-Employment Discrimination by Reason of Disability -Existence of Disability Disputed

 

        Instruction, Notes on Use Committee Comment and Historical Note, New

 

             This new instruction adopts the new causation standard “actually played a role in and had a determinative influence on such action.” To cases accruing after the effective date of Senate Bill 43 (2017).

 

     9. MAI 38.08 [2018 New] Missouri Human Rights Act-Business Judgment Rule (for actions accruing on or after August 28, 2017):

 

      Instruction, Notes on Use Committee Comment and Historical Note, New

 

     This new instruction is applicable to actions accruing on or after August 28, 2017 and was drafted to comply the requirement in Senate Bill 43 that “[i]n all civil actions brought under this Chapter (Chapter 213), a jury shall be given and instruction expressing the business judgment rule.”  See S.B. 43, 213.   That means that this instruction is mandatory in all MHRA cases accruing after the effective date.  The instruction states:

 

Your verdict must be fore defendant if you believe defendant (here insert the alleged discriminatory act submitted on plaintiff’s verdict directing instruction such as “failed to hire,” “discharged,” or other act within the scope of § 213.055, RSMO) plaintiff because (here insert non-discriminatory business reason for defendant’s action) as an exercise of sound business judgment without regard to plaintiff’s (here insert the applicable protected classification submitted by plaintiff such as race, color, religion, national origin etc.) even if you disagree with such decision or believe it to be harsh.

 

     10. MAI 38.09 [2018 New] Missouri Human Rights Act-Damages (for actions accruing on of after August 28, 2017):

 

     Instruction, Notes on Use Committee Comment and Historical Note, New

 

     Actions brought under the MHRA and accruing on or after August 28, 2017 now have a separate damages instruction.    This instruction is in response to Senate Bill 43’s limitations on damages under the MHRA.  According to the new limitation on damages, damages awarded under the MHRA “may not exceed back pay and interest on that back pay, plus an additional amount of damages depending on the size of the company.  See 213.111.3” Official Comment to MAI 38.09.  Additionally, “statutory limitations on damages and the calculation of interest on back pay is a judicial function rather than a jury function.”  Id.  Based on these new limitations, the instruction provides:

 

If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensation plaintiff for any actual damages including back pay, other past [and future] economic losses, and any past [and future] emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-economic losses as a direct result of the occurrence mentioned in the evidence.

 

The actual damages limitations by size of company can be found in the statute and are as follows:

 

4. The sum of the amount of actual damages, including damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and punitive damages awarded under this section shall not exceed for each complaining party:

 

(1) Actual back pay and interest on back pay; and

 

(2)(a) In the case of a respondent who has more than five and fewer than one hundred one employees in each of twenty or more calendar weeks in the current or preceding calendar year, fifty thousand dollars;

(b) In the case of a respondent who has more than one hundred and fewer than two hundred one employees in each of twenty or more calendar weeks in the current or preceding calendar year, one hundred thousand dollars;

 

(c) In the case of a respondent who has more than two hundred and fewer than five hundred one employees in each of twenty or more calendar weeks in the current or preceding calendar year, two hundred thousand dollars; or

 

(d) In the case of a respondent who has more than five hundred employees in each of twenty or more calendar weeks in the current or preceding calendar year, five hundred thousand dollars.

 

Mo. Rev. Stat. § 213.111.3.

 

            This limitation is a significant change.   According to the statute and the Comment to this instruction, the judge will apply the statutory limitations on damages and calculation of interest on back pay.  For actions accruing prior to August 28, 2017, MAI 4.01 will still apply.

 

     11. MAI 38.10 [2018 New] Missouri Human Rights Act-Verdict Form (for actions accruing on or after August 28, 2017)

 

     Instruction, Notes on Use Committee Comment and Historical Note, New

 

     This verdict form requires a jury to separately identify damages for back pay, past economic losses, future economic losses and non-economic losses.  If punitive damages and back pay are submitted, the verdict form must be modified to include separate findings for back pay and punitive damages.  See Committee Comment (2018 New).

 

     These new instructions reflect a significant change in the standard of proof and damages allowable in MHRA cases and should clarify the submission of cases accruing before and after the effective date to juries.

 

Links:

https://www.courts.mo.gov/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/6db6378a1cd47b39862582950063e6d4?OpenDocument

McCarthy O’Connor, P.C. represents individuals, insurers, and commercial clients in civil litigation and arbitration involving personal injury, insurance coverage,  professional liability, consumer protection, and commercial disputes.

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