Employers, supervisors at risk in discrimination lawsuits

Eric G. Jensen is a partner in the Law Firm of O'Reilly & Jensen LLC in Springfield. Part of his practice is devoted to representing employers and employees in discrimination lawsuits.

The Missouri Supreme Court decided Jan. 28 to allow employees the right to a jury trial against employers with as few as six employees under the Missouri Human Rights Act. The Missouri Human Rights Act makes discrimination in the workplace illegal if it is based on gender, race, color, disability, religion, national origin or age.

Under Title VII, the Age Discrimination in Employment Act, and the Americans With Disabilities Act, a federal law that prohibits discrimination based on race, gender, age and disability, employers must have at least 15 employees before these laws apply to their business.

Now, smaller employers will have to be ready to explain to a jury, not a judge, why they terminated an employee or demoted someone. Missouri courts tend to follow federal courts' interpretation of Title VII, and it is expected that Missouri courts will hold smaller employers to a similar standard. The lesson from the Missouri Supreme Court's new ruling is simple: Even employers at or near six employees should have a strong written anti-discrimination policy and should train all employees concerning the anti-discrimination policy.

Any employer who now is alleged to violate the Missouri Human Rights Act faces a jury trial in the county where the discrimination is alleged to occur. Further, a jury under Missouri law does not have to be unanimous in a civil matter. As a result, an employee suing their employer need only convince nine out of the 12 jurors to win the case. Employers must also consider that the costs to successfully defend a jury trial are often more than with a judge-tried case.

An employer's best defense is an attorney-drafted anti-discrimination policy with training of all employees about these laws. Employers who fail to take these basic precautions run a real risk of having substantial judgments, including the plaintiff's attorneys fees, entered against them.

In addition to changes under Missouri law, individual supervisors now face greater liability under the Family Medical Leave Act. The Family Medical Leave Act provides up to 12 weeks of unpaid leave for employees who have serious health conditions or have close family members with serious health conditions in need of protected leave. The Eighth Circuit Court of Appeals, the federal court that interprets federal law for Missouri, recently held that individual supervisors may be held liable under the Family Medical Leave Act for adverse employment actions against employees exercising their rights.

The federal appeals court relied heavily upon the Fair Labor Standards Act in interpreting what the Family Medical Leave Act definition of an "employer" is. A key case involved a public employer, but it is clear from the holding of the case that the court will likely hold private employers to the same standard. Both corporate entities and individuals within those corporate entities can be liable. Other courts looking into this issue have agreed.

All human resource professionals, supervisors and managers making decisions about whether to terminate someone who is on, has asked for, or is returning from Family Medical Leave, should be aware that their decision may have consequences well beyond whether the company properly enforces the law. Employees who are wrongfully fired under the Family Medical Leave Act will now be able to bring their claims against the individuals involved in the decision-making process as well.