Critics say bill could make harassment harder to prove

JEFFERSON CITY, Mo. -- Some state senators are vowing to block a bill that critics claim would essentially legalize sexual harassment in Missouri by making it more difficult to prove discrimination.

The legislation is a response to recent court rulings involving discrimination lawsuits against public schools. But it comes shortly after state agriculture director Fred Ferrell was forced to resign following claims he sexually harassed and discriminated against an employee.

Some senators suggested at a Monday night hearing that the legislation could have made it harder for employee Heather Elder to sue Ferrell, which she did Feb. 23. And Senate Judiciary Committee chairman Matt Bartle said Tuesday that he has no intention of allowing the bill to come to a vote in his committee.

The bill would change the state's definition of discrimination by deleting its description as "any unfair treatment based on" such things as race, religion, gender or disability. Instead, it would require "an adverse action motivated by" those factors.

Sen. Chris Koster, R-Harrisonville, claimed the result would be that repeated words of harassment -- such as Ferrell's alleged suggestion that Elder should be in a wet T-shirt contest -- would no longer qualify as discrimination. Instead, Koster said, the "adverse action" language could require something such as a firing or demotion to pursue a case.

"I couldn't support this bill as it is written," Koster said.

The Missouri Commission on Human Rights also opposed the bill, claiming its proposed changes to Missouri's discrimination law could put it in violation of federal civil rights law and jeopardize the commission's federal funding.

St. Louis attorney Jonathan Berns, representing the Missouri Association of Trial Attorneys, warned the bill would have a devastating effect.

"The bill as drafted would essentially eliminate sexual harassment and hostile workplace claims and would, in fact, make sexual harassment legal under Missouri law," said Berns, whose law firm successfully handled an age discrimination case against the University of Missouri-St. Louis that is cited as one of prime reasons for the legislation.

In that case, jurors awarded baseball coach James Brady $225,000 in compensatory damages, plus $750,000 in punitive damages against the university, $200,000 in punitive damages against a vice chancellor and $100,000 in punitive damages against the athletic director.

The university argued on appeal that jurors should not have been allowed to award punitive damages against the state university because it effectively punished the taxpayers. But the appeals court upheld all of the punitive damages awards.

Republican Sen. John Loudon's bill would bar punitive damages in discrimination cases against public entities. He said it's necessary because school districts, for example, don't have insurance to cover punitive damages.

Loudon said his legislation had no connection to the allegations against Ferrell and pledged Tuesday that he would work to change the "adverse action" definition of discrimination that others opposed.

Loudon acknowledged there seemed to be strong opposition to his bill.

"The shame of it is I think they're using Ferrell to kill a protection for school kids," said Loudon, of Chesterfield.

The legislation also would allow an employer already facing a discrimination lawsuit from a fired employee to come up with new evidence explaining why the employee was fired. In those cases, the employer would be able to limit the amount of damages to the fired employee.

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Discrimination bill is SB532.

On the Net:

Legislature: http://www.moga.mo.gov