A New Day: Understanding How the Changes to the MHRA Will Affect Your School District Joseph M. Wientge, Jr. Littler Mendelson, P.C.

Joseph M. Wientge, Jr. Littler Mendelson, PC St. Louis, Missouri JWientge@littler.com  314.659.2017

Agenda MCHR – Description Changes to the MHRA Overview of Administrative Process Charge Guide: What You Need to Know Review Charge Report to proper parties Conduct fact-finding Early resolution or mediation Prepare response

EEOC Charge Filings on the Rise In FY 2016 2011: 99,947 Highest Total Ever! 2007: 82,792 www.eeoc.gov

EEOC Causes of Action by Statute Applicable Statute Number of Lawsuits 2015 2016 Title VII 83 46 ADA 53 36 ADEA 14 2 Equal Pay 7 5 GINA 1

EEOC Statistics: FY 2016 by Category

EEOC Charges of Discrimination in Missouri EEOC (FY 2016): 2,147 Total Charges of Discrimination Race: 808 (37.6%) Sex: 646 (30.1%) Age: 523 (24.4%) Disability: 706 (32.9%) Retaliation: 1,166 (54.3%) (fastest-growing type of claim since 2009)

MCHR Complaints in Missouri: FY 2016 https://labor.mo.gov/sites/labor/files/pubs_forms/2016AnnualReport.pdf

Recent Verdicts and Settlements Wilkins v. St. Louis University (2016) - $4.85 million for race discrimination Lin v. Ellis/Wash. U. (2017) -$769,000 for failure to accommodate Scully v. Hickman Mills Sch. Dist. (2016) - $747,582 for age discrimination Baldridge v. KC Pub. Sch. (2016) – $806,075 for failure to accommodate

Missouri Human Rights Act – What it was…. Missouri Human Rights Act was originally passed in 1957 and was amended in 1978 and then again in 1986. However, judicial interpretation has led to many of the changes in the MHRA. Liability Standard “Contributing factor” is that which contributes a share of anything or has a part in producing the effect– Judicial Interpretation. Individual Liability “Employer” can be an individual –Judicial Interpretation. 3) No Business Instruction – Judicial Interpretation.

Missouri Human Rights Act – What it was…. 4) No Limitation on Damages –Statutory. “Garden Variety” – emotional damages can be proven without medical evidence and prohibits discovery on medical causation – Judicial interpretation. Statutory Limitation on Punitive Damages limited to five (5) times amount awarded – Statutory. Addition of Attorneys fees to Multiplier –Judicial Interpretation. 5) Challenging Timeliness of Charge Challenging the propriety of the issuance of Right to Sue Letter must be made by Writ against the MCHR – Judicial Interpretation.

Missouri Human Rights Act – …What it is now! Amendments to the Missouri Human Rights Act through Senate Bill 43 Liability Standard “Motivating Factor” - employee's protected classification actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action. 2) Who is Employer Employer – is person who employs six or more employees, but specifically excludes an individual.

Missouri Human Rights Act – …What it is now! Limitation on Damages Damages include: Back pay; Emotional damages, front pay, and punitive damages with limitations depending the number of employees: $50,000 for employers with more than 5 employees, but less than 100 employees; $100,000 for employers with more than 100 employees, but less than 200 employees; $200,000 for employers with more than 200 employees, but less than 500 employees; and, $500,000 for employers with more than 500 employees. Attorneys fees and costs.

Missouri Human Rights Act – …What it is now! Business judgment instruction In federal court this instruction instructs the jury that: You may not return a verdict for the plaintiff just because you might disagree with the defendant’s decision or believe it to be harsh or unreasonable. Challenges to Timeliness of Charge An employer can now also challenge the timeliness of an employee’s claims in a lawsuit before the court in the suit that is pending without having to file a writ against the MCHR.

Missouri Human Rights Act – …What it is now! Potential for Challenges: “Motivating factor” is defined as: the employee's protected classification actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action. However, another section of SB 43 provides “the plaintiff shall bear the burden of proving the alleged unlawful decision or action was made or taken because of his or her protected classification and was the direct proximate cause of the claimed damages.” Section 213.111.5 R.S.Mo. Seems to require more for a plaintiff to prevail than the “motivating factor.”

EEOC/MHRA Charge Guide: What You Need to Know

Overview of the Pre-Lawsuit Administrative Process Employee files a complaint or “Charge of Discrimination” (dual filing with EEOC) Notice and Service of Charge on Employer Agency Investigation Agency Determination (“probable cause” or not?) If probable cause, agency may decide to hold public hearing or initiate its own lawsuit If no probable cause, agency will issue “right to sue letter” Lawsuit by Employee

Worksharing Agreements and “Dual Filing” EEOC has “worksharing agreement” with MCHR, so they don’t duplicate each other’s work This means charging party automatically gets benefit of dual filing 1st Filed in MCHR – will file with EEOC automatically, but retain jurisdiction over investigation 1st Filed in EEOC – will file with MCHR, but generally retain jurisdiction over investigation

EEOC’s Digital Charge System Optional Secure Online Portal Eff. January 1, 2016 District or Counsel can: Receive Notice of Charge Review Charge Respond to invitation to mediate Submit Request for Information Submit Position Statement

Steps Following Notice of Charge Review Charge Report to proper parties Conduct fact-finding Consider early resolution or mediation Prepare and submit response to agency

STEP 1: Review of the Charge

Sample Notice of Charge

Step 1: Review of the Charge (cont.) Review for basic information Who is the claimant? Who are the alleged offenders? Are any witnesses identified? When did the alleged violation occur? Are any documents identified?

Step 1: Review of the Charge (cont.) Determine your response obligations. These are set out in the Notice of Charge sent by the agency Typically, includes a Statement of Position (more on this below)

Deadlines MHRA – Charge must be filed within 180 days EEOC - Charge must be filed within 300 days Lawsuit must be filed within 90 days of issuance of Right to Sue letter MHRA – lawsuit must also be filed within 2 years of the act in question

STEP 2: Report Internally – superintendent, HR, IT, legal department Externally – insurance carrier, counsel

STEP 3: Fact Investigation Gather the Facts Interview the alleged offenders Get their “side of the story.” Explore their history with claimant and the decision-making process. Interview the offender’s superiors Determine if they may have any exposure due to their involvement in the conduct or decision. Interview all potential witnesses; consider taking recorded statements Identify “similarly-situated” employees. Determine if the complained-of conduct was applied neutrally. Inspect and photograph the location of the incident(s) where appropriate

STEP 3: Fact Investigation (cont.) Gather the Documents Personnel files Written complaints Investigation files Emails, text messages, and security video about the incident(s) Employee handbook and training materials Non-discrimination/harassment policies Grievance procedures Progressive discipline policy Attendance and payroll records Relevant statistical data Litigation Hold: Maintain all relevant documents until the matter is fully resolved

STEP 4: Early Resolution or Mediation MCHR 10 days from Notice of Charge to accept 100% voluntary In-person or over the telephone Don’t have to respond to charge MCHR or private mediators?

STEP 4: Mediation If you did nothing wrong, why mediate? PROS: Possible to resolve case quickly and inexpensively (court process takes about 2.5 years) Process will be “confidential” According to EEOC, 77.9% are successful Consider for current employee

STEP 4: Why Not Mediate CONS: Others may file Charges, especially if current employee Might be an extraordinary waste of time and money Position statement resulting in dismissal may cost about the same or less than mediation settlement Warning: Dismissal after Position Statement is unusual Undermines management decisions Could be extortion Claimant could be fishing for information and defense strategies

STEP 5: Respond to the Charge

STEP 5: Contents of the Response Position Statement: Employer’s “take” on the allegations, both factual and legal Documents: Those specifically requested by the agency, or those that you believe agency should consider Additional Info: As the agency may request Extensions of time are commonly granted; however, the EEOC is becoming more strict

Agency Investigation Agency has subpoena power Methods of discovery include: witness/employee interviews, site inspections, document requests, and interrogatories Interviews Tape Recording: EEOC will probably tape record; employer should also Right to counsel for management-level employees Attorney should be involved in this process, may need to make objections if investigator advises that it will be used as evidence

Agency Determination Options No Cause: unable to establish violation of the law Others: untimely charge, unable to locate CP, facts alleged do not state claim Cause Finding: short letter, introductory and concluding paragraphs are standard

MCHR HEARINGS Applicable statute - § 213.075, RSMo. At Commission’s discretion; very rarely utilized Hearing conducted by panel of members of Commission or their designated “hearing examiner” Decides case on the merits – Commission can order employer to pay back pay, make accommodations, pay statutory penalties up to $10,000, cease and desist the discriminatory practice, etc. In response to notice of hearing  contact any attorney. Employer can – and should – elect to have case heard by civil jury in Circuit Court. See § 213.076, RSMo.

MCHR HEARINGS: Frequency

The Right-to-Sue Notice A “right-to-sue letter” is issued by the agency to the claimant and authorizes the filing of a civil lawsuit. It ends the agency’s investigation. Suit must be filed within 90 days of: Date of the letter (MCHR); Date of Claimant’s receipt of letter (EEOC).

Right-to-Sue: Example