Missouri Supreme Court Allows Employees To Proceed With Discrimination Lawsuits Based On Untimely Filed Charges Of Discrimination

On August 27, 2013, the Missouri Supreme Court issued an opinion that significantly changes the way employers will have to approach raising objections to improperly filed charges of discrimination under the Missouri Human Rights Act (MHRA).1 In a stunning change of MHRA jurisprudence, the opinion allows an employee to proceed with an MHRA lawsuit based on an untimely or other improperly filed charge of discrimination if the employer fails to object to the charge before the Missouri Commission on Human Rights (MCHR) and fails to seek judicial review of the MCHR's improperly issued right-to-sue notice.

Before filing a lawsuit under the MHRA, a plaintiff must first file a charge of discrimination with the MCHR within 180 days of the allegedly discriminatory act.2 Traditionally, Missouri courts have treated this timing requirement as a statutory limitation that could be raised as an affirmative defense to an MHRA lawsuit.3 But the court's recent opinion undermines this jurisprudence and creates significant traps for the unsuspecting employer.

Below is a summary of the court's opinion, with an emphasis on how the court construed an employer's duties to object to the MCHR's lack of jurisdiction and follow the MHRA's judicial review process when the MCHR exceeds its jurisdiction. Also discussed is the court's rejection of the traditional practice of allowing employers to raise arguments attacking the MCHR's jurisdiction as affirmative defenses to an MHRA lawsuit. This article concludes with considerations that every employer should evaluate upon receiving notice of a new MCHR charge of discrimination in light of these new objection requirements.

Factual Background

Plaintiff was a longtime nurse working for a medical center employer. She contended that in the mid-2000's, a doctor propositioned her, suggested an affair, and sporadically made inappropriate sexual comments. Plaintiff allegedly reported these incidents and claimed that the employer took various retaliatory actions in response. Ultimately, plaintiff's employment was terminated on December 10, 2008.

On July 27, 2009230 days after her dischargeshe filed a charge of discrimination with the MCHR. Plaintiff's charge was dual filed with the Equal Employment Opportunity Commission (EEOC). In November 2009, the EEOC issued plaintiff a right-to-sue notice and, about one month later, the MCHR issued a right-to-sue notice as a result of the EEOC's notice.4 The MCHR did not conduct an investigation...