March 30, 2023 - A hearing was held yesterday before the Senate General Laws Committee chaired by Sen. Mike Bernskoetter on SB 60, a bill filed by Sen. Greg Razer that would add "sexual orientation" and "gender identity" as new protected classes under the Missouri Human Rights Act (MHRA).
The U.S. Supreme Court decided federal law (Title VII of the Civil Rights Act of 1964) protects against discrimination based on sexual orientation and gender identity because the Court held sexual orientation and gender identity were included in the category of "sex" discrimination, which is prohibited by that federal law. With this federal protection in place, one may wonder why the proponents want to put this language in the Missouri Human Rights Act as proposed in SB 60.
Ray McCarty, president and CEO of Associated Industries of Missouri testified in opposition to the bill
He began by pointing out Associated Industries of Missouri opposes all forms of unfair discrimination and harassment in the workplace and encourages employers to adopt policies prohibiting all such discrimination and harassment. Such policies should prohibit harassment or discrimination based on race, color, religion, national origin, gender, sexual orientation, gender identity, age, disability or veteran status of employees or applicants. But he said the organization opposes all legislation that would establish new protected classes of employees under the Missouri Human Rights Act.
McCarty noted two potential reasons proponents may want this language added to the protected classes in the MHRA, even though sexual orientation and gender identity are already protected classes under federal law.
First, the federal law applies to employers with 15 or more employees. The MHRA applies to employers with 6 or more employees. Adding this language into the MHRA would mean approximately 20% of all employers, those with more than 6 and less than 15 employees, would be liable for lawsuits alleging discrimination based on sexual orientation and gender identity. McCarty pointed out these smaller employers may not have the same training and supervision of larger employers.
"An inappropriate comment or joke by an employee could lead to a lawsuit that could be the end of a small business, even if the employer takes appropriate action against the employee," said McCarty. "We expect larger employers to properly train supervisors and employees but employees of smaller businesses are often working very hard and serving in multiple roles and may not have the benefit of adequate training in this area."
Second, state courts hear cases involving the Missouri Human Rights Act while federal courts hear cases involving the federal Civil Rights Act of 1964. If this language is added to the MHRA, plaintiffs would be able to try the cases in state courts. Plaintiffs' attorneys seem to enjoy more favorable treatment in state courts, particularly in plaintiff-friendly venues such as the City of St. Louis, which the American Tort Reform Foundation ranks as one of the top places in the nation to bring such lawsuits.
In addition to these issues, determining whether a person is a member of the protected class could be very difficult for employers and coworkers, due to the nature of "gender identity" in particular. The term, "gender identity" is defined by the Human Rights Campaign (one of the largest LGBTQ advocacy organizations) as "one's innermost concept of self as male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves. One's gender identity can be the same or different from their sex assigned at birth."
Because gender identity involves a person's concept of themselves, there may be no outward expression of this personal perception. This leaves employers in a dangerous position. If they take action against an employee and that employee claims they were discriminated against because of their gender identity, the employer would have to defend themselves against discrimination when they may not have had any clue the person's perception was different than their sex at birth. This as another way for disgruntled employees and clever attorneys to file lawsuits against employers.
Associated Industries of Missouri was the only business advocacy group opposing the bill. The bill was heard by the committee, but no action was taken at the hearing.