SECOND REGULAR SESSION

HOUSE BILL NO. 1187

93RD GENERAL ASSEMBLY

INTRODUCED BY REPRESENTATIVES WILDBERGER (Sponsor), WALSH AND KUESSNER (Co-sponsors).

AN ACT

To amend chapter 292, RSMo, by adding thereto one new section relating to unlawful employment practices.

Be it enacted by the General Assembly of the state of Missouri, as follows:

Section 292.660
1. As used in this section the following terms shall mean:

(1) "Abusive conduct" is conduct of an employer or employee in the workplace,with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests. In considering whether abusive conduct is present, a trier of fact should weigh the severity, nature, and frequency of the conduct. Abusive conduct may include, but is not limited to, repeated infliction of verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating; or the gratuitous sabotage or undermining of a person's work performance. A single act normally will not constitute abusive conduct, unless especially severe and egregious;

(2) "Abusive work environment" is a workplace where an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to the employee;

(3) "Conduct" is all forms of behavior, including acts and omissions of acts;

(4) "Constructive discharge" is abusive conduct which causes the employee to resign and where prior to resigning, the employee brings to the employer's attention the existence of the abusive conduct, and the employer fails to take reasonable steps to eliminate the abusive conduct;

(5) "Employee" is an individual employed by an employer, whereby the individual's labor is either controlled by the employer or the individual is economically dependent upon the employer in return for labor rendered;

(6) "Employer" includes individuals, governments, governmental agencies, corporations, partnerships, associations, and unincorporated organizations that compensate individuals in return for performing labor. Employer also includes the state or any subdivision of the state, any county, city, city and county, including any charter city or county, and any school district, community college, municipal or public corporation, political subdivision, and any state institution of higher education;

(7) "Malice" is the desire to see another person suffer psychological, physical, or economic harm, without legitimate cause or justification. Malice may be inferred from the presence of factors such as, outward expression of hostility, harmful conduct inconsistent with an employer's legitimate business interests, a continuation of harmful illegitimate conduct after the complainant requests that it cease or demonstrates outward signs of emotional or physical distress in the face of the conduct, or attempts to exploit the complainant's known psychological or physical vulnerability;

(8) "Negative employment decision" is a termination, constructive discharge, demotion, unfavorable reassignment, refusal to promote, or disciplinary action;

(9) "Physical harm" is the material impairment of a person's physical health or bodily integrity, as documented by a competent physician or supported by competent expert evidence at trial;

(10) "Psychological harm" is the material impairment of a person's mental health, as documented by a competent psychologist, psychiatrist, or supported by competent expert evidence at trial.

2. It is an unlawful employment practice under this section to subject an employee to an abusive work environment.

3. An employer is vicariously liable for an unlawful employment practice in violation of this section committed by its employee.

4. It is an affirmative defense to an action for an abusive work environment that the employer exercised reasonable care to prevent and promptly correct the abusive conduct and the aggrieved employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer. This defense is not available when the abusive conduct culminates in a negative employment decision.

5. It is an affirmative defense to an action for an abusive work environment that the complaint is grounded primarily upon a negative employment decision made consistent with an employer's legitimate business interests, such as a termination or demotion based on an employee's poor performance, or the complaint is grounded primarily upon an employer's reasonable investigation of potentially illegal or unethical activity.

6. It is an unlawful employment practice under this section to retaliate in any manner against an employee because he or she has opposed any unlawful employment practice under this section, or because he or she has made a charge, testified, assisted, or participated in any internal proceedings, arbitration and mediation proceedings, and legal actions.

7. Where a defendant has been found to have committed an unlawful employment practice under this section, the court may enjoin the defendant from engaging in the unlawful employment practice and may order any other relief that is deemed appropriate, including, but not limited to, reinstatement, removal of the offending party from the complainant's work environment, back pay, front pay, medical expenses, compensation for emotional distress, punitive damages, and attorneys' fees.

8. Where an employer has been found to have committed an unlawful employment practice under this section that did not result in a negative employment decision, the employer's liability for damages for emotional distress may not exceed twenty-five thousand dollars and the employer may not be liable for punitive damages. This subsection does not apply to individually named co-employee defendants.

9. The provisions of this section may be enforced solely by a private right of action.

10. An action commenced under this section may be commenced no later than one year after the last act that comprises the alleged unlawful employment practice.

11. Nothing in this section may be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any other law of this state.

12. The remedies in this section are in addition to remedies under workers' compensation laws. However, a person who believes that he or she has been subjected to an unlawful employment practice under this section may elect to accept workers' compensation benefits in connection with the underlying behavior in lieu of bringing an action under this section. A person who elects to accept workers' compensation may not bring an action under this section for the same underlying behavior.