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By Attorney Tim Willoughby
St. Louis Missouri employment lawyer
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ARTICLES:

Missouri Employment Discrimination Law

Introduction to the rights of persons who are being discriminated against based on Gender (including Sexual Harassment), Pregnancy, Race (including National Origin), Age, Religion, or Disability, or who are Being Retaliated Against for Making Complaints About Discrimination

Consider seeing a lawyer before you take any action. Much strategizing may need to be done. Strategizing is often crucial, and may make the difference between seeing a decent outcome or having a turd in your sock.

See the Outline below for internal links to the various parts of this Article. See the Additional Resources listed below for more Articles on this website about your potential rights. There is much you can do about illegal discrimination.

You should consider calling a lawyer to talk about your potential case, because there is much strategizing that you should perhaps be doing right now.

Maybe you and your lawyer will decide to consider filing a charge of discrimination with the EEOC or MCHR (discussed in detail below). But you need to get your story straight, right from the gitgo, because whatever you say, and don’t say, will haunt you throughout the life of your case.

People undermine and sabotage good EEOC charges all the time by not bringing a lawyer in to help them frame their case, or help them interface with EEOC. It is not “required” to have a lawyer assist at the EEOC level — but it also is not “required” to have a criminal defense lawyer, because you can represent yourself in court — you make the call.

Your deadline is very short to file your charge of discrimination (discussed below). Then, when the EEOC or MCHR finishes with your charge, you will face a further short deadline to get your lawsuit filed in the right court.

After you read this general article on Discrimination rights and procedures, spend some time also looking at the following resources, where you might find some more detailed info and perhaps learn about additional rights and procedures that could apply to you:

Outline of the contents of this general Discrimination Procedures article

WARNINGS

GOVERNMENT EMPLOYEES: Government employees have special rights not covered in this discussion. I have a separate article, Government Employees, giving some additional info and links. For example, the discussion of deadlines below does not apply to Federal Government Employees. Federal Government Employees should right away file an initial internal EEO complaint about discrimination within their own employing agencies (incredibly short deadline) rather than file initially with the Equal Employment Opportunity Commission (EEOC).

Missouri State, city and county employees can file with the EEOC or the Missouri Commission on Human Rights (MCHR) as discussed below, but should also consider complaining to any other agency that may be proper. I discuss the problems with government employee complaints a bit more in the Government Employees article.

Who are the EEOC and MCHR and how do you contact them?

The EEOC is the Equal Employment Opportunity Commission, a federal agency that handles discrimination complaints arising from the Federal anti-discrimination laws. Call the EEOC in St. Louis at 314-539-7800 and leave your name and address. The EEOC will send you a packet of paperwork to start your charge of discrimination. It helps to be represented by a lawyer, but it isn’t required in order to receive the EEOC’s basic services.

The MCHR is the Missouri Commission on Human Rights, a Missouri State agency that handles discrimination complaints arising under the laws of Missouri. The MCHR works closely with the EEOC. Call the MCHR in St. Louis at 314-340-7590. The MCHR will send you a packet of paperwork to start your charge.

Types of discrimination that you can complain about to the EEOC and MCHR:

  • Gender, including Sexual Harassment and Pregnancy Discrimination. See also my Hostile Environment article.
  • Race Discrimination (includes national origin) (See special notes below about 42 USC 1981).
  • Religious Discrimination.
  • Age Discrimination (only persons 40 or more years old are covered).
  • Disability Discrimination.
  • Retaliation for complaining to your employer about any of the above forms of discrimination.
  • Retaliation for filing complaints with the EEOC or MCHR about any of the above forms of discrimination.
  • Retaliation for assisting others in complaining about discrimination or filing discrimination charges.
  • Retaliation for giving testimony or evidence in support of others who are complaining about discrimination.
  • For all forms of retaliation, please see also my separate article about Retaliation.

The most commonly used laws against discrimination that are handled
by the EEOC and/or the MCHR are the following:

The EEOC handles the following laws:

  • Civil Rights Act of 1964
  • Age Discrimination in Employment Act
  • Americans with Disabilities Act (the employment provisions only)
  • Equal Pay Act of 1963 (Prohibits employers from paying women less than men for equal work on jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions)

The MCHR mainly handles the Missouri Human Rights Act (MHRA). The MHRA’s protections roughly parallel the protections under the major Federal discrimination laws for discrimination based on race, gender, age, disability and religion. Missouri also has a law somewhat like the Equal Pay Act, but it has a 180 day statute of limitations to file a charge. FYI the Missouri Equal Pay Act is located at RSMo 290.400 to 290.450.

Race Discrimination enjoys special extra legal protection under 42 USC 1981

SPECIAL NOTE ABOUT RACE DISCRIMINATION AND 42 USC 1981: For race discrimination and retaliation arising from race discrimination complaints, there is another law that protects employees - 42 U.S.C. Section 1981 (Links to Cornell Legal Information Institute, opens in new window).

We refer to 42 U.S.C. 1981 as simply “Section 1981″. Section 1981 has been on the books since about the year 1866, and is still alive and well. Section 1981 prohibits race discrimination in contracts and employment.

The EEOC and MCHR do not handle Section 1981. If you have been discriminated against at work due to race, or Retaliated Against arising from a race discrimination complaint, you have the right to march straight into court and sue immediately under Section 1981, as well as file a complaint of discrimination with the EEOC or MCHR about the race discrimination or retaliation. There are often advantages to this approach to enforcing your rights. It’s a very aggressive approach.

The damages available to you under Section 1981 may be greater than under the regular EEOC-related laws, because there are no specific or explicit “caps” on the amount of damages you can win. But for practical purposes, the courts impose limits on the available damages anyway, based on general legal doctrines against the awarding of excess damages. Still, the threat of higher damages makes Section 1981 cases more risky for companies to defend than the more typical EEOC-related cases under the other civil rights laws.

Also, the statute of limitations is usually longer. It appears to me that the statute of limitations under Section 1981 will be 4 years from the date of the discrimination, based on my reading of the May 3, 2004 United States Supreme Court decision in Jones v. Donnelley.

There is no employer size limit under 42 USC 1981. Section 1981 applies to all employers regardless of their size and regardless of the number of people they employ.

Is your employer big enough to be covered by the discrimination laws?

Short answer — 15 or 20 employees for EEOC laws and 6 employees for Missouri’s MHRA. Read on for more info.

For race discrimination (or retaliation arising from a race discrimination complaint) see the special note about 42 USC 1981 above. No size limits apply under 42 USC 1981. If your employer has 15+ employees, then the Civil Rights Act of 1964 applies, along with 42 USC 1981, and the EEOC will take your complaint.

For Federal Equal Pay Act claims, there is no pre-set size limit, but the employer must be covered by the Fair Labor Standards Act (FLSA). It’s not reasonably possible for me (in this article) to give you an education about the interstate commerce requirements of the FLSA. If you are not getting the same pay as men for the same work, call a lawyer and consider filing an EEOC charge, regardless of the size of your employer. Let the lawyer and the EEOC figure out whether the employer is covered by the law. Pay situations that would violate the Equal Pay Act will also violate the gender discrimination provisions of the Civil Rights Act of 1964 if your employer employs 15+ persons.

Missouri has something like an Equal Pay Act, and it is a threat to every employer.

AGE DISCRIMINATION: Under the Federal laws handled by the EEOC your employer must employ 20+ persons.

RACE, GENDER, DISABILITY and RELIGION: Under the Federal laws handled by the EEOC, your employer must employ 15+ persons.

MISSOURI LAWS: The Missouri Human Rights Act (MHRA), only requires 6 employees for the laws to apply to your employer.

TIP: Don’t assume your employer is too small to be covered. It might take a lawyer and a lawsuit to determine how many employees your employer really has. If your employer operates several small companies, none of which have 15 or 20 employees, sometimes the court will allow you to combine the employees and total them up for purposes of meeting the 15 or 20 employee threshold.

Which agency do you file with, the EEOC or the MCHR?

If your employer is covered by the major Federal discrimination laws, then you have the right to file a charge of discrimination with the EEOC and also the MCHR. You can choose which agency to file with. The agency you choose will handle your charge from start to finish. Whichever agency you choose, that agency will automatically cross-file your charge with the other agency, so that you are automatically filed with both agencies.

For race-related discrimination, you have the option of suing under 42 USC 1981 while also filing a charge of discrimination.

For Federal Equal Pay Act claims, you have the option of suing right away or filing an EEOC charge.

If your employer employs at least 6 people, but less than the amount required to be covered by the Federal discrimination laws, you have the right to file a charge of discrimination with the MCHR.

TIP: If you’re not sure your employer employs 15+ people, file with the MCHR. If you file with the EEOC, and it turns out your employer employs too few people, the EEOC will transfer your claim to the MCHR for processing. This will delay your claim.

Time limits for filing charges of discrimination for
RACE, GENDER, DISABILITY, RELIGION and AGE

If you think you might have waited too long to take action, please see my article about Missed Deadlines. There may still be hope for you.

Missouri’s discrimination laws have the shortest deadline, which is 180 days from the date of the discrimination for RACE, GENDER, DISABILITY, RELIGION and AGE.

The Federal discrimination laws allow 300 days from the date of the discrimination in which to file a charge with the EEOC for RACE, GENDER, DISABILITY, RELIGION and AGE.

If you file with the EEOC or MCHR within 180 days, you protect your rights under BOTH the Federal and Missouri discrimination laws.

If you file with the EEOC or MCHR after 180 days, but before 300 days, your rights are protected only under the Federal discrimination laws.

If you file with the MCHR or EEOC more than 300 days after the discrimination, you have waited too long (unless yours is a race discrimination case - for race discrimination you have a Plan B: You can sue under 42 USC 1981).

The EEOC will tell you that you have 300 days to file a charge of discrimination. If you wait more than 180 days to file, however, you lose your rights under the Missouri Human Rights Act (”MHRA”) (those rights roughly parallel your rights under the EEOC’s discrimination laws). When you file with the EEOC, you are automatically cross-filed with the Missouri Commission on Human Rights (MCHR). But if you filed with the EEOC more than 180 days from the date of the discrimination, your MHRA rights have most likely already expired. If your MHRA rights expire, you can still sue under the EEOC’s laws. But it’s usually best to have more options, and as a general rule you should file with the EEOC within 180 days just to make certain you are covered by both the EEOC and the Missouri discrimination laws.

NOTE: Federal Equal Pay Act claims are different. You don’t have to file with the EEOC, but you can if you want to. Within 2 years of the violation, you can either sue or file with the EEOC. (You have 3 years to sue for “willful violations” - but try to file within 2 years).

NOTE: Recall from above that for race discrimination, 42 USC 1981 has a much longer time limit to file a lawsuit.

SPECIAL PROBLEM: When did the discrimination occur?

A lot of people lose their cases on the technicality that they failed to file their charges of discrimination within the short time limits.

In many if not most cases, the employer will try to kill your case by arguing that you waited too long to file a charge of discrimination. It is not always clear when the “discrimination” occurred. Many people are still employed when they file charges, claiming that they’ve been denied promotions or denied raises based on discriminatory factors. Many people wait longer than 300 days from the last promotional opportunity, raising questions about whether their complaint was timely filed. Many people quit their jobs and then file discrimination charges based on discriminatory conduct that occurred over a long period of time in the past, raising questions about whether they timely filed a charge of discrimination even if they filed a charge the day they quit. It gets very complicated — See a lawyer right away if you feel you are being discriminated against.

EEOC Mediation

Please see also my separate article on Mediation at EEOC or Court for more info.

In many instances, the EEOC will attempt to get the ball rolling on an early resolution by offering the parties the chance to sit down and talk about a settlement. Employees are usually willing to commence such talks. Companies usually decline. And when companies agree to mediate, they bring their lawyers and come to the mediation loaded for bear.

Even in those cases where the parties do agree to come to an EEOC mediation, most of the time expect only a relatively small settlement to be available. There are exceptions of course.

For many people, a token settlement is appropriate and is the best they can hope for. For others, with stronger cases, a token settlement is inappropriate. It’s all case by case. Remember that the typical EEOC claim is quite weak, at least at the early stage where mediation is offered. Companies have a hard time justifying a big settlement if your claim appears (for technical legal reasons) weak.

The mediation process starts with the EEOC sending a letter to the parties offering the chance to mediate. If both parties agree, then the EEOC arranges the mediation. The mediator is either an EEOC employee or a local lawyer working on contract with the EEOC.

The parties will meet at a specified location and will spend 1 hour to maybe 4 hours together. It’s possible that the mediation can last longer than 4 hours, but that’s not encouraged in my experience at the EEOC level. As long as progress toward a resolution is being made, the parties can stay and talk, assisted by the mediator who serves as a go-between. But there’s a lot of pressure to end it after 4 hours.

The parties might, or might not, have their lawyers with them. The parties learn something about each others evidence and attitudes. Then they talk about settlement. Sometimes employees face a small team of supervisors, witnesses and Human Resources employees. Sometimes it’s just the company lawyer and a manager.

In conclusion, consider trying the EEOC mediation process if it’s offered, but don’t get your hopes up too much. Consider getting a lawyer to assist you.

Please see also my separate article on Mediation at EEOC or Court for more info.

Getting a “Right to Sue” letter, or two

TIP: The EEOC will automatically send a Right to Sue,
but the MCHR will NOT - you have to request it.

The “Right to Sue” letter is your permission slip to file a lawsuit in court. The EEOC’s Right to Sue letter covers the Federal discrimination laws, while the MCHR Right to Sue letter covers the Missouri State discrimination laws. Ideally, you would obtain both an EEOC and an MCHR Right to Sue letter, to keep your options open. The main option to keep open is the option to file your lawsuit in Missouri State Courts using the MCHR Right to Sue letter. If you sue under the EEOC Right to Sue letter, you will probably have to be in Federal District Court. Some lawyers think you are better off suing in Missouri State Court. In order to sue in Missouri State Court (and possibly keep your case in that court) you have to obtain an MCHR Right to Sue letter. To get an MCHR Right to Sue letter, you may need to tell the MCHR to stop processing your claim and issue the letter. More about this below.

The EEOC’s Right to Sue letter is good for 90 days from the date you receive it, and the EEOC automatically sends the letter to you when it finishes processing (or investigating) your charge.

If you filed initially with the EEOC, then the EEOC will process your charge. Sometimes they will do an investigation and take witness statements. Sometimes, the EEOC will actually help you. But for most people, the EEOC does not end up doing anything that helps you.

At the end of the process, the EEOC automatically issues you the “Right to Sue” letter if the EEOC decides not to help you further. That way, you can go to court and sue.

If you filed initially with the MCHR, then the MCHR will process your charge. Until recently, the MCHR would not automatically send out a Right to Sue letter (you must have requested the letter). The MCHR Right to Sue letter is good for 90 days from the date that appears on the letter (compare to the EEOC’s way of measuring the 90 days described above).

Some people choose to take their chances, and they allow the MCHR to decide their case. These people are usually disappointed, because the MCHR rarely decides that someone has been discriminated against. There are exceptions, of course.

Strategizing to get two
Right to Sue letters

Consider filing your charge with the EEOC if you can. The EEOC will tell the MCHR that the EEOC will be processing your charge, and the MCHR will sit back and do nothing most of the time (waiting for the EEOC to finish). Generally, the EEOC will issue you a Right to Sue letter when it finishes the claim, and the EEOC will tell the MCHR that the claim is finished.

Buying your EEOC file

After the EEOC issues the Right to Sue letter, you can go to the EEOC and make a written request to buy your file. The EEOC will have a copy service count up the pages and then you will be billed a certain amount per page, such as $0.25 or so. After you pay, the EEOC will send you a copy of your investigative file (much of it anyway - some of it they’ll keep secret). You can take the file to lawyers for review. Sometimes the file will help you get a lawyer.

TRAPS:

  • The MCHR’s Right to Sue letter is only good for 90 days from the date that is stamped on the letter. This differs from the EEOC’s Right to Sue letter. The EEOC’s letter is good for 90 days from the date you received it. But the EEOC’s Right to Sue letter only covers the Federal laws, not Missouri’s laws.
  • Under the Federal Equal Pay Act, your 2 year statute of limitations (3 years for willful violations) continues to run even though the EEOC is processing your charge. You don’t need a “Right to Sue” letter under the Equal Pay Act.
  • Under the Federal Age Discrimination laws, you must sue within 2 years of the discrimination (3 years for willful violations) even if the EEOC is still processing your charge of discrimination.
  • Under the Missouri Human Rights Act, you must sue within 2 years of the discrimination even if the EEOC or MCHR is still processing your charge of discrimination.

Filing a lawsuit without having a lawyer

If you can’t get a lawyer, and your Right to Sue letter is about to expire, you can still file a lawsuit. If your case can be filed in Federal Court, call the clerk of the U.S. Eastern District Court in St. Louis - the clerk has a packet of info for people who need to file employment cases and don’t have lawyers (see the link to the their website on my Links page). Don’t miss your filing deadline. File a lawsuit even if you don’t have a lawyer. After you file the lawsuit, you can take a deep breath and relax, because you’ve met your deadline. Then you can continue calling lawyers until you find one to take on your case.

TRAP: If your employer employed fewer than 15 or 20 people (depends on the law), you might have to file your lawsuit in a Missouri State court rather than Federal court. Missouri State courts don’t give out packets of info to help you, but in the St. Louis area you can go to the SLU or Wash U law libraries and do some research to learn how to file a lawsuit.

I have a short article about filing lawsuits without having a lawyer, which is called filing “Pro Se” (pro say). Pro Se Filing.

Some links to government info websites

For more information about the discrimination laws and your rights, visit the web site of the Equal Employment Opportunity Commission (EEOC). The Missouri Commission on Human Rights (MCHR) also has a web site with additional information.

Article written by | Tim Willoughby


***** END OF ARTICLE *****

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Website (see the directory of lawyers).

Tim Willoughby, Attorney
(Licensed in Missouri)
11414 Gravois Rd., Suite 203
St. Louis, MO 63126
ph:    314-729-7750
fax:   314-729-7799

1.6 miles North of I-270 on Gravois.
... Near I-270 and I-44

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