SB 43 Will Create More Roads to Injustice

Let’s say you work at Uber, and you’re sexually harassed. You try to bring it to Human Resources, but they ignore your claim, and say “that even though this was clearly sexual harassment and he was propositioning me, it was this man's first offense.” This behavior is repeated over and over again, and you bring it up to HR each time it happens, but then all of a sudden you’re either fired or taken to arbitration court to keep you quiet.

Or let’s say you work for a media organization with a history of sexual harassment and settling out of court.

Or perhaps you work for a “feminist” start up focusing on hygiene products, and you’re sexually harassed by your boss and there’s no HR department to field these issues.

If SB 43 and SB 45 are passed in Missouri, victims of discrimination and sexual harassment will have a nearly impossible path to justice.

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These types of bills are called “tort reform” and are quickly moving through most state legislatures. There’s a concerted effort from one organization (American Tort Reform Association) to change how regular folks gain access to the court system.

To start, what is a tort? Tort refers to proposed changes in the civil justice system that aim to reduce the ability of victims to bring tort litigation or to reduce damages they can receive.

So what is tort reform? Tort reform is a group of ideas and laws designed to change the way the  civil justice system works, and make it more difficult for injured people to file a lawsuit, exercise their 7th amendment (access to a trial by jury), and cap limits on how much they can get in a settlement. The rhetoric supporting these bills is expressed as stopping “frivolous lawsuits” and ending “judicial hellholes”; it’s language that obfuscates the intended consequences on citizens.

Tort reform legislation will impact literally everyone. It goes after victims of car accidents, workplace and housing discrimination, first time employees, and anyone who has handled a product.

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SB 43 changes how someone can sue if they are discriminated against.

Currently in Missouri, the Human Rights Act (MHRA) protects individuals based on race, color, religion, national origin, ancestry, sex, disability, age, and familial status. Note that sexual orientation and gender identity aren’t included, despite 19 years of legislation to amend that.

SB 43 changes the language in the MHRA that allows legal action based on discrimination from “contributing factor” to “motivating factor”. Under “contributing factor” language, if you are fired, denied housing or experience any other form of workplace or housing discrimination, and there are behaviors that strongly indicate it was because of your protected class (excluding LGBTQ identity), you have grounds to sue. With the changed language, you would need explicit evidence -- like an email -- proving that protected class was the cause for discrimination.

(On top of that the bill strips whistleblower protections.)

SB 45 would allow employers to put arbitration clauses in contracts without alerting their employees. Arbitration courts are privately funded and remove a person’s seventh amendment right to a jury of their peers.

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So what happens if SB 43 and SB 45 pass?

Imagine you work with people who call you derogatory and racist names, and when you bring it up to your supervisor, you, instead of the harassers, are fired. You have no recourse to sue.

Imagine you try to sue your employer based on repeated, but unreported, incidents of discriminatory behavior, and they lead to dismissal. You find out it’s nearly impossible to sue, but if you’re able to access a court system, that it’s not public. You’ll be forced to go through a court system not accountable to public record or a jury system.

Imagine you coach baseball and are fired because it’s “cheaper” to hire someone younger, but it was never made that explicit.

Imagine being denied housing because you are pregnant.

Imaginations won’t be necessary. All of these situations will be acceptable under the law if these bills are signed into law.

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