There’s an old adage about speech writing – use the word “sex” in your opening, and you’ll have your audience’s attention. Now that I’ve got your attention . . .I wish this were a joke, or a clever literary device, but sadly, it’s not. The Missouri Legislature has introduced legislation that allows a slimy boss to get away with sexual assault. I’ve written about other aspects of SB 43 in previous blogs. There’s so much wrong with this legislation that it can’t be covered in just one post. Today, I am focusing on the elimination of individual liability.Today, under the Missouri Human Rights Act (MHRA), an employee can sue both the employer company and the individual who discriminated against the employee. That makes sense, right? For decades, we have been told that we should take responsibility for our own actions. Particularly in the context of lawsuits, the idea of personal accountability was used by groups who wanted to eliminate what they called “frivolous lawsuits” brought by people who should “take responsibility for their own conduct” instead of suing someone else.[caption id="attachment_10379" align="alignleft" width="300"]
Popham Law Firm crew working for Habitat for Humanity[/caption]There’s another adage – “Sauce for the goose is sauce for the gander.” If taking personal responsibility is good enough for the person suing, it’s good enough for the person being sued. If a person violates a law like the MHRA, they should be held personally responsible. That’s the way it is today, and the way it should be.That’s going to change if the legislature has its way. The way they are doing it is a little sneaky. You have to look in the definitions section of the statute. Among the various things being defined, there’s a section that defines “employer.” Under that, there’s a subsection that says, “’Employer’ shall not include . . . an individual employed by an employer.” There’s also a section that excludes “corporations and associations owned and operated by religious or sectarian groups” – so Saint (Fill in the Blank) Hospital is free to discriminate all it wants – but that may be another blog.Before I get back to the title of this blog, there’s another new, sneaky section you need to know about. “This [statute] . . .shall provide the exclusive remedy for any and all unlawful employment practices” mentioned in the statute (the emphasis is mine). In other words, if someone has violated the MHRA, your only hope is to sue under the terms of that statute.S0 – back to the title. Here’s a situation I wish were just a made up hypothetical, but it’s from a real case. A bright, hardworking teenage girl, looking to make some money for college, gets a job at the local fast food restaurant. The manager is a creepy 50 year old who can’t keep his hands to himself. I’ll let your imagination figure out what happens next, but I’ll add that this is not the first time for this manager. Creeps like that are usually repeat offenders.Under the MHRA today, the teenage victim of Mr. Hands can sue the restaurant and Mr. Hands. Personal responsibility, right? He assaulted this young girl, and he’s done it before, and if he’s not stopped, he’ll do it again. He should pay, right?Not if the Missouri Legislature has their way. Under the new definition of “employer”, Mr. Hands cannot be sued. But wait – he assaulted her! Isn’t he liable for that? Nope. Remember that second sneaky little addition to the statute, about “exclusive remedies”? The poor girl’s only remedy is under the MHRA. She can’t even bring a civil assault and battery charge against Mr. Hands. How’s that for personal responsibility? In my next blog, I’ll talk about how her damages are being cut by this same law.The example above is just one way individual responsibility is being eliminated. Think of all the things the MHRA protects – race discrimination, age discrimination, disability discrimination, gender discrimination -- and it doesn’t take long to realize that a racist bully in the workplace can get away with taunting, mocking, teasing behavior and not be held accountable. It isn’t just sexual assault the Legislature condones – it’s the guy teasing the co-worker with Down’s Syndrome, “macho man” telling the female “this is a man’s job,” the racist hanging a noose “as a joke” – and yeah, that’s a real case, too.Get on the phone, send letters and emails – we’ve got to stop this!