Cape County discrimination lawsuit moves forward as Senate considers changes to law

A local sexual harassment case that will now go before a jury highlights Missouri's workplace discrimination law as the state Senate debates changes to it.

The Missouri Eastern District Court of Appeals this week reversed a decision by Cape Girardeau County Circuit Court Judge Benjamin Lewis that was in favor of Rich House Inc., a franchisee of McDonald's Corp. The appellant in the case -- a 15-year-old McDonald's crew member at the time -- alleges she was threatened and sexually assaulted four times by a 31-year-old assistant manager and forced to quit her job.

In her original lawsuit she sought to hold assistant manager Kevin Emanuel, Rich House Inc. and company president Shannon Davis liable for damages.

The appeals court upheld Lewis' previous decision that Davis was not individually liable.

"We're very pleased that Shannon Davis was dismissed individually," said Rich House attorney Chad Reis of Littler Mendelson PC in St. Louis. "It was never alleged that Shannon Davis did anything wrong at any time."

Reis said he and his client were surprised the court reversed the decision on the claim of sexual harassment against Rich House.

Tuesday and Wednesday the Missouri Senate debated a bill that would modify the Missouri Human Rights Act, the law under which cases like this one are filed. Under changes being debated, cases like this might never go to a jury. Senate Bill 592 gives preference to summary judgments instead of jury trials in discrimination cases.

Lewis initially dismissed the claims against Davis and Rich House on summary judgment, a decision that J.P. Clubb, who represented the appellant in the case, said is only appropriate when the parties in the case agree on the facts involved and it's just a matter of how the law should be applied to the case. The appeals court also upheld a default judgment of $25,000 granted by Lewis against Emanuel.

"The Court of Appeals decision just follows existing Missouri law that recognizes that employment discrimination cases are fact-intensive cases that, for the most part, should be decided by juries," Clubb said.

Emanuel did not participate in the original court proceedings and has not paid any part of the judgment, Clubb said.

Currently, under the Missouri Human Rights Act, managers are liable for discriminatory practices. Under Senate Bill 592, only employers could be held liable.

In addition, the legislation caps damages plaintiffs in employment discrimination cases may receive based on the number of employees their employer has.

"This law seeks to gut the few protections left for Missouri employees," Clubb said. "Making it easier for employers to discriminate or sexually harass their employees will not bring more jobs to Missouri. In fact, it will likely have the opposite effect. No one wants to live in a state that sanctions and promotes employment discrimination."

Business groups that back the legislation, including the Missouri Chamber of Commerce and Industry, say Missouri's employment discrimination laws put businesses at a competitive disadvantage because they are more favorable to plaintiffs than federal discrimination laws. Under the Missouri Human Rights Act, a person's race, color, religion, national origin, ancestry, sex, disability or age must be a contributing factor in the decision to discriminate for an employer to be liable. Federal law says discrimination must be the motivating factor in an employer's action against an employee.

As stated in the appeals court's opinion, "MHRA's safeguards are not identical to federal standards and can offer greater protection."

Senate Bill 592 aims to bring Missouri in line with the federal standard, something Reis said just makes logical sense.

"I think it's important that Missouri develop what's gone on in the federal courts. The standard we have of this contributing factor means that potentially, all they have to show is it could have been in the thought process. One percent," Reis said. "With this case it's even more applicable."

According to Reis, as soon as the crew member reported the alleged harassment to another supervisor, Emanuel was suspended and never returned to work for the company.

"Employers have to have certain protections if they have effective measures to stop harassment and they have complaint mechanisms and they take the proper actions," Reis said. "As in the federal court, they should have a defense and not be subject to liability."

mmiller@semissourian.com

388-3646

Pertinent address:

Jefferson City, Mo.