April 18, 2024 - The Senate General Laws Committee yesterday heard SB 787, sponsored by Sen. Greg Razer, that would establish new protected classes for sexual orientation and gender identity in the Missouri Human Rights Act. The bill also broadens the definition of "discrimination" in the workplaces of all employers.
Ray McCarty, president and CEO of Associated Industries of Missouri, was the sole business representative testifying against the bill, noting:
1. Associated Industries of Missouri's Board of Directors adopted a policy that reads, "Associated Industries of Missouri (AIM) encourages employers to enact policies prohibiting all discrimination and harassment in the workplace. 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. However, AIM opposes legislation that would establish new protected classes of employees under the Missouri Human Rights Act."
2. On June 15, 2020, the U.S. Supreme Court decided in Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020), that Title VII's prohibition against sex discrimination includes sexual orientation and gender identity. Regarding employment, this decision applies to all employers with more than 15 employees because they are subject to the federal Human Rights Act.
3. Because of this U.S. Supreme Court ruling allowing cases to be brought in federal court, the bill would actually impact employers with more than 5 and fewer than 15 employees because they are subject to the Missouri Human Rights Act, but not the federal Human Rights Act. McCarty noted such employers normally do not have sophisticated human resources departments to help the employer avoid discrimination lawsuits.
4. An additional reason supporters may want to add this language into the Missouri Human Rights Act may be to bring lawsuits against employers in state court, rather than federal court. State courts in Missouri are notoriously plaintiff-friendly, particularly in urban areas.
Sen. Razer also stated several times during his presentation of the bill and his summary of the bill following testimony that LGBTQAI+ persons were not protected from discrimination in housing. That appears to be incorrect.
According to the U.S. Department of Housing and Urban Development (HUD) website, "The Fair Housing Act prohibits housing and housing-related discrimination because of race, color, national origin, religion, sex (including gender identity and sexual orientation), familial status, and disability. A person who has experienced (or is about to experience) discrimination in housing because of sex, including their actual or perceived sexual orientation or gender identity, may file a complaint with HUD. HUD will investigate complaints alleging violations of the Fair Housing Act on this basis."
HUD also clarifies that the Fair Housing Act covers most housing. "In very limited circumstances, the Act exempts owner-occupied buildings with no more than four units, single-family houses sold or rented by the owner without the use of an agent, and housing operated by religious organizations and private clubs that limit occupancy to members."
Another troubling provision of the bill broadens the definition of what qualifies as "discrimination" for purposes of the Missouri Human Rights Act to read as follows:
"Discrimination includes any unfair treatment based on a person’s presumed or assumed race, color, religion, national origin, ancestry, sex, sexual orientation, gender identity, age, as it relates to employment, disability, or familial status as it relates to housing, regardless of whether the presumption or assumption as to such characteristic is correct." (emphasis added)
Because the definition of "unfair treatment" is not present in Missouri law and there is no further guidance in the bill, this language could broaden the types of lawsuits that could be brought against employers and perhaps lower the evidentiary standard necessary to succeed with a lawsuit against an employer. Using such a subjective term could make it easier for an employer to accidentally violate the statute or be held to violate the statute as that term is interpreted by Missouri courts.
The 2024 Missouri Legislative Session is in its final weeks as the session will conclude on May 17. We will advise of any further developments regarding this issue on this or any bill to which the provisions are amended.