Legislation would alter how employee discrimination lawsuits are handled

EDITOR'S NOTE: The Missouri Chamber of Commerce and Industry is asking the 2011 legislature to pass reforms in six areas that will make Missouri a better state to do business in. This occasional series explores those areas -- minimum wage, employment law, workers' compensation, franchise tax, lawsuit reform and unemployment fund.

In front of a jury, Lisa Grissom had to relive the nightmare she says her job had become.

For three years, the man who signed her paychecks was consistently crossing the line: He made comments about her breasts and grabbed them in front of her colleagues. He joked about sexual positions and sent her explicit e-mails.

Once, he even offered her money in exchange for sex. Once, he pressed up against her, and when she tried to walk away, he blocked her, then slapped her backside as she walked away, according to court documents.

According to court records, co-workers allegedly witnessed her boss' behavior.

Grissom reported it to her office manager and, after consulting an attorney, gave her boss a letter demanding that he stop. If he didn't, she would pursue legal action, court records say.

Grissom was eventually fired, and she maintains that it was because she complained about the sexual harassment.

She reported the incidents and her termination to the Missouri Human Rights Commission, which granted her the right to sue her employer.

Grissom was awarded $125,000 in damages by a Scott County jury in June after suing her boss and the company he owned.

Legislation moving through the Missouri House and Senate would change the way employment discrimination cases like Grissom's are handled. If the legislation were in place she wouldn't have been able to sue her boss individually and the maximum amount of damages she could receive would be $50,000.

As part of the Missouri Chamber of Commerce and Industry's Fix the Six agenda, advocates say Missouri's employment discrimination laws put businesses at a competitive disadvantage because they are more favorable to plaintiffs than federal discrimination laws. Under Missouri's Human Rights Act, discrimination must be a contributing factor in the case for an employer to be liable. Federal law says discrimination must be the motivating factor.

"She could not afford to quit her job over this kind of conduct, and she tried her best to continue to come to work every day, but this took a very large toll on her," Grissom's attorney, Laura Clubb, said during her opening statement at the trial.

Grissom told a jury she was devastated, humiliated and embarrassed by her boss' actions. She said she sought medical treatment and counseling as a result.

"It's greatly changed me. I have -- I'm just not the same person that I used to be," she told the jury during her trial, according to court records.

Her boss, who has since retired and sold the insurance agency, denied the accusations in court, according to trial transcripts. He did not respond to an interview request by The Southeast Missourian. Grissom's attorneys, Laura Clubb and her husband J.P. Clubb, say the proposed changes to the law make it easier for businesses to fire people and erode workers rights.

Both the Missouri House and Senate have passed bills this session to change Missouri's employment discrimination laws so they mirror federal civil rights laws. The legislation would also cap damages that can be awarded by juries, in cases like Grissom's, based on the number of employees a business has.

Under Senate Bill 188 and House Bill 205, damages in employment discrimination cases would be limited to $50,000 for employers with between five and 100 employees. Grissom's employer had less than a dozen employees.

For businesses with between 100 and 200 employees, damages would be capped at $100,000. The maximum damage cap would be and $300,000 for employers with more than 500 employees.

The legislation would also prohibit victims in employment discrimination cases from suing individuals.

The jury's verdict was against her boss specifically, not the insurance brokerage company. However, he has yet to pay anything toward damages, court costs and attorney fees totaling more than $214,000. Portions of the case remain under appeal, Grissom's attorneys said.

"The jury said, 'This guy was the bad actor, we're going to hold him responsible,'" Laura Clubb said. "Under the new bill, we would be prohibited from suing the individual. The person who actually did the acts, you wouldn't be able to sue. How that is good for Missouri businesses, I can't figure out,"

The legislation encourages courts to grant summary judgments rather than letting cases proceed before a jury, she said.

"What our Missouri Supreme Court has said is these cases are very fact-intensive and a court shouldn't get rid of them on summary judgment. If there are issues in dispute, then a jury should hear those. It's an important right for claimants to take those claims to a jury," Laura Clubb said.

The Missouri Commission on Human Rights investigates complaints of discrimination in housing, employment and places of public accommodations based on race, color, religion, national origin, ancestry, sex, disability, age and family status. In 2010 it received 1,652 employment discrimination complaints. Of all cases filed with the commission, right-to-sue letters were requested by 25 percent of complainants, Missouri Labor Department communications director Amy Susan said in a written statement.

Because of top court

Sen. Jason Crowell, who voted for Senate Bill 188, says the "liberal" Missouri Supreme Court is writing law in this area that is not as balanced as the federal approach.

"Missouri didn't develop a historical discrimination area of law. It was foisted up the state when after 48 years of consistent rulings, the Missouri Supreme Court somehow found a right to jury trial in the state constitution, even though all other courts until this one couldn't," Crowell said.

Rep. Wayne Wallingford, R-Cape Girardeau, voted for the House version of the legislation. He said that expensive litigation hurts small businesses, particularly. Wallingford is also an executive with McDonald's.

"This gets us back to federal standard, which is more conservative and more business-friendly," Wallingford said. "For businesses that want to look at expanding in Missouri, this will go a long way in helping attract them."

When asked for examples of cases where Missouri juries awarded large amounts of damages in employment discrimination cases against businesses, the state chamber cited Howard v. Kansas City, in which the Missouri Supreme Court affirmed a jury verdict of more than $2.1 million, including $1.5 million in punitive damages; and Low and Griffin v. Kansas City, in which a jury awarded the two plaintiffs total damages of $2.66 million, including $900,000 apiece in punitive damages.

Those cases involved employees of a municipality, not a business, but the proposed law says punitive damages can no longer be awarded against the state or its political subdivisions.

"It was a good example of how this problem hits all of us, in this case as taxpayers," said Karen Buschmann, vice president of communications at the Missouri Chamber of Commerce and Industry. "At a time when cities are struggling with budget shortfalls, they are further strapped by the possibility of crippling punitive damages. It's not just a business issue."

Under Missouri law, victims of discrimination do not get to keep all of their punitive damages awards. They keep half and the other half goes to the Missouri Tort Victims Compensation Fund, a state run fund to help provide legal assistance to the poor, J.P. Clubb said.

The jury awarded Grissom $100,000 in punitive damages, but in her closing statement, Laura Clubb asked the jury to award her client $250,000 for emotional distress damages.

"Is that going to make her the person that she used to be? Maybe not," Laura Clubb said in court. "Is it going to give her maybe the confidence to go out and get back into the game and start selling insurance again, get back on her feet? Yeah. It's really hard to put a price on dignity, but we think that $250,000 is a good place for you to start."

The proposed legislation also changes Missouri law protecting "whistle-blowers," employees who report illegal activity at their workplace.

The proposed legislation originally said that whistle-blower protection should apply only in cases where an employee alerts authorities to an illegal act but has since been amended to say the employee must report the illegal act to the person deemed appropriate by their company, Buschmann said.

One of the most well-known whistle-blower cases in Missouri occurred in 2003 when a jury awarded a former Enterprise Rent-A-Car executive $4 million after he sued claiming he was wrongfully terminated for refusing to commit an illegal act and for blowing the whistle on alleged illegal conduct. Thomas Dunn, a vice president and accountant at Enterprise, was fired after he reported conduct he believed violated federal securities laws to the company's chief financial officer, according to court documents. The case was upheld in 2005 by the Missouri Court of Appeals, Eastern District. The Missouri Supreme Court refused to hear the case.

mmiller@semissourian.com

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