Only weeks before allegations against Hollywood mogul Harvey Weinstein drew the nation’s attention to the prevalence of sexual harassment, Missouri made it easier for offenders in the workplace to go unpunished.
Until recently, you could sue a person who sexually harasses on the job in Missouri. Now you can’t be so direct, due to a law signed by Gov. Eric Greitens over the summer.
“You can sue the company but you can’t sue the harasser,” said Kansas City lawyer Mark Jess. “That’s crazy to me.”
Besides shielding individual offenders from litigation, amendments to the Missouri Human Rights Act enable those who engage in sexual misconduct to change jobs without a new employer knowing of past offenses, said Jess and other experts on employment law.
Legislators drafted Senate Bill 43 to bring Missouri’s litigation rules in line with most states, including Kansas, and to set liability standards used in federal courts.
Supporters said the law, which took effect Aug. 28, will help attract businesses and still reveal Missouri offenders.
“Nothing in this bill prevents a harasser from being named in open court,” said Karen Buschmann, vice president of communications for the Missouri Chamber of Commerce and Industry. “It only requires the employee to name the employer instead of the individual in the complaint.”
An alleged offender’s name may appear within court documents, but not as the defendant of a suit. That makes tracking the person’s actions almost impossible as he or she moves from job to job, said discrimination attorney Kelly McCambridge.
She said companies commonly type applicants’ names into Missouri Case.net , an internet database of filed claims, but searches could come up empty under the new rules.
Without the individual being a defendant, “you lose that paper trail,” McCambridge said. “Then he might harass again.”
Kansas permits sexual harassment suits against individuals as well as companies. But Jess said Kansas law tightly restricts punitive damages and attorney fees in such cases, compelling most litigants to file in federal court.
All sides agree: Large corporations prefer that cases be argued in federal court. There, summary judgments typically supersede jury trials. And it means companies need not hire attorneys versed in specific state laws.
Under the old Missouri rules for harassment and discrimination cases, plaintiffs had a better chance that a local jury would decide. “By naming an employee who was also a resident of Missouri,” said the chamber’s Buschmann, “they could keep the case in more plaintiff-friendly state courts.”
The new law mostly benefits companies based outside Missouri. Plaintiffs may still sue in local courts if the business is headquartered in the state. Also, workplace misconduct that involves physical violence will continue to be heard by criminal-court judges.
As for more common cases of sexual harassment, critics of Senate Bill 43 say many predatory bosses are now off the legal hook.
Lawyer Jess, who testified against the measure in Jefferson City, said Republicans controlling the statehouse should know better.
“For the party of personal responsibility,” he asked, “how does this fly?”
Rick Montgomery: 816-234-4410, @rmontgomery_r