The Missouri Human Rights Act is the Law of Choice for Sexual Harassment Victim's Privacy

  

by Lewis B. Gainor¹

For all of the attention recent case law on the Missouri Human Rights Act has received at the plaintiffs' bar, one benefit of the law has been ignored - the protections for sexual harassment victims' privacy. The rules of ethics require plaintiffs' attorneys to counsel their clients on the superior privacy protections of the MHRA compared to federal sexual harassment law.

I. Introduction

The Missouri Human Rights Act (MHRA)² has been a hot area of employment law since recent state appellate and Supreme Court decisions have expanded plaintiffs' rights under the law.³ Yet for all of the attention these developments have received at the plaintiffs' bar, one component of the MHRA that strengthens a plaintiff's action in state court has been ignored. This aspect of the MHRA has been neglected, probably because it primarily benefits the client rather than the attorney. Still, this benefit is one of the purposes for which sexual harassment protections were enacted in Missouri, and it should be acknowledged by every plaintiffs' attorney who practices under the Missouri rules of ethics. The MHRA provides a victim of sexual harassment more protection of her privacy than federal sexual harassment law.

When a woman files suit against an employer for sexual harassment, her highest concern is that the suit must not cost more than it is worth.⁴ The victim would rather avoid litigation if recovery is small. The victim would rather not sue the employer if the legal process is unduly long and uncertain in result. And most importantly, the victim would rather avoid a lawsuit if the legal process causes her to suffer indignities more severe than the harassment she suffered at work.

The foregoing considerations are representative of the general factors victims will assess in making the decision of whether or not to sue.⁵ Lawyers have concerns other than those of their clients, however. They are concerned with the applicable substantive and procedural law, in addition to deep pockets and sympathetic juries.

Yet the concerns of the client and attorney are not mutually exclusive. The concerns of the client inform the decisions of the attorney, just as the concerns of the lawyer inform the decisions of the client. The attorney should counsel the client on the merits of a suit from both the client's personal and legal standpoint - whether the client has considered these perspectives or not. This requires the lawyer to advise the client of the risk that an invasion of her privacy may occur during litigation. The rules of ethics require this disclosure. Rule 4-1.4(b) provides: "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."⁶ Rule 4-2.1 also provides: "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."⁷

When attorneys counsel a client considering a sexual harassment lawsuit, they must emphasize significant developments in state sexual harassment law relating to plaintiffs' privacy. The recent changes in Missouri sexual harassment law make the MHRA the law of choice for victims of sexual harassment seeking to protect their privacy.

This article presents some of the issues confronting victims of sexual harassment, emphasizing privacy. Because every victim is an individual, one woman's concerns about a lawsuit will differ from those of other women. It is, therefore, difficult to predict the concerns of any particular client. However, attorneys can anticipate that no matter what, the plaintiff's highest concern is that the lawsuit not cost more than it is worth. To her, this means litigation must not further victimize her. Her suit should not cause her additional harassment, em-barrassment, or invasions of privacy. Her lawsuit should remedy the sexual harassment, not exacerbate it. Only the MHRA, not federal statutory law, can accomplish these objectives consistently for most plaintiffs.

The assertion that the MHRA is the law of choice is examined here in three parts. The first section presents the background of substantive sexual harassment law. The second section presents a comparison of state and federal procedure governing sexual harassment suits. (The examination of MHRA procedure does not address the administrative process preceding a suit in a trial court.)⁸ The third and final section demonstrates how, through the interaction of state and federal law, the MHRA is the law of choice for victims of sexual harassment because it protects their privacy.

II. Background of Substantive Sexual Harassment Law

Sexual harassment is a cause of action created by state and federal statutes. The federal cause of action for sexual harassment comes from the Civil Rights Act of 1964.⁹ Title VII prohibits discrimination "against any individual . . . because of such individual's . . . sex."¹⁰ Initially, courts did not interpret discrimination to mean harassment, but now sexual harassment is actionable as discrimination.¹¹ Title VII prohibits quid pro quo harassment¹² and sexual harassment creating a hostile work environment.¹³

State law prohibiting sexual harassment is similar to Title VII. In Missouri, the MHRA provides that it is "an unlawful employment practice . . . [f]or an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex."¹⁴ To establish sexual harassment under the MHRA and Title VII, the plaintiff "must show that: (1) she is a member of a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment, and (5) the employer knew or should have known of the harassment and failed to take appropriate remedial action."¹⁵ Further, both state and federal law require that the "sexual harassment must be [so] sufficiently severe or pervasive [as] to alter the conditions of the victim's employment and create an abusive working environment."¹⁶

The injury that victims of sexual harassment suffer in litigation comes chiefly from one element, the "unwelcomeness" of the sexual advances. If the defendant can prove that the sexual advances were not unwelcome, it may defeat the plaintiff's claim. Hence the opportunity to harass the victim with intrusive and humiliating questioning arises in order to create the inference that she is promiscuous and prove that she welcomed the advances. Scholars argue that negative stereotypes attach to women who sue for sexual harassment and these stereotypes invite questioning designed to impugn the victim's sexual history.¹⁷

Examples of the abuses committed as a consequence of the "welcomeness element" are numerous.¹⁸ In Burns v. MacGregor Electronic Indus., the trial court allowed the defendant to introduce evidence that the plaintiff posed nude for a motorcycle magazine, that her brother observed it, and that her father pierced her nipples.¹⁹ In Stacks v. Southwestern Bell Yellow Pages, the court admitted evidence that the victim had an affair with a married man.²⁰ And in Blankenship v. Parke Care Centers, Inc., the court admitted evidence of the victim's childhood sexual abuse.²¹ Scholars have argued that, as in rape cases, the victim of sexual harassment is put on trial, not the rapist or harasser.²²

Sexual misconduct is actionable under legal theories other than the state and federal statutes outlined thus far. These legal theories include intentional infliction of emotional distress,²³ civil assault and battery,²⁴ and negligent transmission of a sexual disease.²⁵ However, the most prevalently prosecuted claims in Missouri are based on rights created by statute, namely Title VII and the MHRA.

Such is the substantive law in sexual harassment actions. State and federal statutes are the source of a claimant's rights. Yet attorneys should not overestimate the significance of substantive sexual harassment law. Because of their training in legal reasoning, lawyers are prone to see a sexual harassment case as a right and remedy. However, the relief for violation of one's right to be free of unwanted sexual advances is not the only factor plaintiffs assess in deciding to seek redress for sexual harassment. Plaintiffs consider more than the available money damages and equitable remedies. Plaintiffs want to know whether the defense will make litigation a painful and humiliating ordeal. No attorney complying with the rules of ethics is in a position to judge for the victim which concern - the available relief or the ordeal of a lawsuit - is more important. Rule 1.2 of the Rules of Professional Ethics provides: "A lawyer shall abide by a client's decisions concerning the objectives of representation."²⁶

Because the client's decisions concerning the objectives of representation depend on the information provided by her counsel, the procedural law governing sexual harassment actions becomes not just a secondary consideration, but rather a primary consideration in every case. The rules of evidence and discovery determine what the victim must endure in order to remedy her rights. Therefore, an attorney counseling a victim of sexual harassment should inform her of what to expect under the procedural law of federal and state courts.

Next this article compares procedural law in state and federal courts and highlights some key differences. These differences bear substantially on what a victim of sexual harassment must endure in order to obtain vindication. The client needs to know the likelihood that the defendant can or will exploit the process to humiliate her, and this can be predicted according to the procedure for litigation under either jurisdiction.

III. State and Federal Procedure for Sexual Harassment Claims

Historically, Missouri sexual harassment law has been less protective of victims' privacy than federal law. However, recent state Supreme Court and appellate decisions have changed the situation.

The procedural protections in place for victims of sexual harassment have their origin in criminal procedure. These protections developed because women's rights advocates prevailed upon the state and federal legislatures to safeguard the privacy of witnesses in sex crime trials. In all Missouri state and federal courts, these protections operate in sex offense prosecutions.

In federal courts, the source of these protections is in the Federal Rules of Evidence. Federal Rule of Evidence 412 protects the privacy of victims of sex crimes during criminal prosecutions.²⁷ It constitutes a general bar against the admissibility of evidence of the victim's sexual history in the case. Rule 412 does provide exceptions to the bar, but restricts them to where the evidence is relevant and highly probative of a specific issue negating the crime. Rule 412 is known as the rape shield law for its protection of victims' privacy.

Missouri's rape shield statute, § 491.015, RSMo,²⁸ also prohibits the admission of evidence of a victim's sexual history except in very restricted instances where the evidence is relevant and highly probative of an issue that would negate the crime.

Thus federal rules and state statutes both bar the admission of evidence of a victim's sexual history in criminal prosecutions. Yet historically, federal law has prohibited the admission of such evidence in civil actions as well, while Missouri law has enforced no such bar in civil cases. Congress amended Rule 412 in 1994 to make it applicable to civil actions.²⁹ Missouri courts have not interpreted § 491.015, RSMo, to apply to civil actions. Nor does this interpretation seem likely since the statute restricts its application to prosecutions under Chapters 566 and 568 of the code.³⁰ If a witness's sexual history is at issue in a civil case, § 491.015, RSMo, does not bar the admission of such evidence.

The inapplicability of the Missouri rape shield statute to civil cases is not fatal to sexual harassment victims' privacy, however. Recent case law has made state sexual harassment suits, as distinguished from other state civil suits, subject to special restrictions on the admissibility of evidence of prior sexual conduct. This development resulted from a unique interaction of the substantive and procedural law applicable to MHRA and Title VII claims. In all other state civil cases, witnesses remain unprotected.

Before discussing the nuts and bolts of the privacy protections for MHRA plaintiffs brought about by recent decisions, it is important to understand their value. The value of these special safeguards is apparent when one considers what can be done in their absence. That is, what remains permissible in other state civil cases is the best demonstration of the impact of the new evidentiary restrictions in sexual harassment cases.

In all other civil cases, the failure of the Missouri legislature to extend the rape shield law beyond criminal prosecutions is serious for litigants' privacy. Because no rule expressly prohibits the introduction of evidence of a woman's sexual past in civil cases, a woman's privacy is vulnerable to attack at more than one stage of litigation. Not only is she potentially subject to embarrassing cross-examination as a witness during trial, she is also subject to harassment during discovery.

Harassing discovery is possible because parties may request discovery of evidence even if it is inadmissible at trial. Under both the federal³¹ and state³² discovery rules, parties may request anything so long as it is "reasonably calculated to lead to the discovery of admissible evidence."³³ Thus, the defendant may conduct a fishing expedition using every available discovery device - interrogatories, depositions, document production, physical and mental examinations, expert witness research, etc. - for evidence of indiscretion or sexual history that is not even relevant or admissible at trial, but the production of which would be embarrassing to the plaintiff.

In sexual harassment suits, the federal courts have prevented such abuse somewhat adequately³⁴ by relying on Rule 412 as a guide for issuing protective orders under Federal Rule of Civil Procedure 26(c). In all civil cases, a federal court may issue an order barring discovery where it rises to the level of "annoyance, embarrassment, oppression, or undue burden or expense."³⁵ By comparison, Missouri civil courts have no such evidentiary rule for guidance in issuing protective orders to safeguard women's privacy.³⁶

Thus the procedural law governing civil actions is more protective in federal courts, and less so in state courts. But, as discussed, recent decisions have made state sexual harassment claims an exception. Notwithstanding this exception, the absence of protection in other civil cases should be cause for concern among Missouri legislators for many reasons. At least one scholar has asserted that the reasons for protecting a witness in civil actions may be even greater than in criminal prosecutions.³⁷ In employment law cases, for example, defendants are often large corporations while plaintiffs are individual people. The result of this imbalance is that big business is able to use its resources as leverage against individual plaintiffs.³⁸

The Missouri legislature must address the deficiency in safeguards for the sexual privacy of all civil witnesses. In the absence of legislative reform, however, sexual harassment plaintiffs in particular do have some recourse.

IV. The MHRA Is The Law of Choice for Sexual Harassment Victims

When the Missouri Court of Appeals for the Eastern District decided Pollock v. Wetterau Food Distribution Group³⁹ in 1999, it moved Missouri law closer to providing the protection for women's privacy that federal law provides. Missouri will lag behind in other civil cases until some sort of civil rape shield statute is enacted. Nonetheless, the Pollock decision created an exception where it matters most. Pollock implemented safeguards in those cases where abusive and harassing defense tactics are the most rampant, the most injurious to plaintiffs, and the most inimical to the purpose of the statute plaintiffs invoke for vindication - in sexual harassment cases. The interpretation of the MHRA in Pollock makes the MHRA a cause of action superior to Title VII for its protection of victims' privacy.

The Pollock decision was a watershed in that it had at least two consequences. First, the case made the substantive law of sexual harassment in Missouri, the MHRA, very pro-plaintiff. Second, the decision reaffirmed years of federal and state precedent directing state courts to afford MHRA plaintiffs the same procedural protections as they would get in federal court. Each is discussed in turn.

Pollock made the MHRA substantively pro-plaintiff because it imposed strict liability on employers for supervisory sexual harassment.⁴⁰ Whether the victim reports the sexual misconduct or not, and regardless of whether she suffered detrimental employment action, the employer is liable.⁴¹ This development is a victory for victims' rights in that it removes the issue of the woman's silence from the case. Defendants cannot construe the victim's silence as proof that the workplace was not hostile. Defendants cannot offer evidence of the victim's silence as proof that she welcomed the harassment. Thus, the focus shifts away from the conduct of the victim. Many victims report that they were afraid to come forward for fear of retaliation. Pollock removes the deterrent from pursuing claims later because victims cannot be penalized for remaining silent.

The strict liability standard imposed in Pollock accomplishes even more. It makes the MHRA substantively more pro-plaintiff than Title VII. A sexual harassment claim under federal law contains the potential obstacle of an employer's affirmative defense. The United States Supreme Court in Faragher v. City of Boca Raton⁴² held that when the victim suffers no detrimental employment action and fails to report the abuse, the employer may escape liability if it shows that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and . . . the [victim] unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."⁴³ The affirmative defense burdens the victim in two ways. First, the affirmative defense could defeat her claim, obviously. Second, the issue of whether she unreasonably failed to report the harassment or to otherwise avoid the harm facilitates the same assault on her character that occurs under the element of welcomeness. Defendants are encouraged to prove that it was the victim's sexual proclivities that made her unreasonably fail to avoid the harm or report the sexual advances-i.e., prove she liked it. Scholars predict the defense bar will find myriad ways to use the affirmative defense to attack the victim's sexual privacy.⁴⁴ The MHRA, however, excludes the issue of the victim's silence from trial completely.

Hence, the MHRA is substantively more pro-plaintiff than federal sexual harassment law. The imposition of strict liability means that character assassination done for the purpose of proving welcomeness is curtailed. The victim is not on trial, and she is not penalized for not coming forward.

The second consequence of the Pollock decision is that MHRA plaintiffs may now take advantage of the procedural protections of federal law. The Court in Pollock reaffirmed several years of federal and state precedent holding that the MHRA should be interpreted consistent with federal law.⁴⁵ The directive for state courts to interpret the MHRA consistent with the purpose of Title VII allows state trial courts to draw on federal procedure for claims prosecuted under the MHRA.

Procedural precedent in Title VII claims, both in Missouri federal courts and across the nation, shows a judicial preference for protecting the privacy of sexual harassment victims through protective orders during discovery.⁴⁶ The federal and state rules governing protective orders both provide that the court may issue an order barring discovery where it rises to the level of "annoyance, embarrassment, oppression, or undue burden or expense."⁴⁷ The scope of discovery is a matter of judicial discretion.⁴⁸ Judges weigh the interest of the party requesting the information against the interest of the party furnishing it.⁴⁹

Federal courts have an evidentiary rule upon which to rely for guidance in balancing the parties' interests during discovery. Federal courts may rely on Rule 412. Federal courts in Missouri have invoked the purpose of Rule 412 and granted protective orders to prevent harassing discovery in sexual harassment cases containing both Title VII and MHRA claims. For example, in E.E.O.C. v. Danka Indus., Inc.,⁵⁰ the U.S. District Court for the Eastern District of Missouri granted a protective order to bar discovery of a sexual harassment victim's prior sexual conduct with other people.

Thus, plaintiffs in Missouri state courts asserting MHRA claims have specific federal authority for the granting of protective orders barring discovery of a victim's sexual history. This federal authority is applicable in state courts hearing MHRA claims because, in addition to the mandate to interpret the MHRA consistent with federal law, the federal and state rules of discovery are the same, and Missouri precedent dictates that they should be applied consistently. For example, in Stortz by Stortz v. Seier, the appeals court for the Eastern District held that Missouri Rule 56.01(c) governing "protective orders in the discovery process . . . is modeled after Federal Rule of Civil Procedure 26(c)[, and] [a]s a result, federal precedent concerning that rule[,] and its predecessor, is a persuasive guide for construction of" the state rule.⁵¹ The appeals court for the Southern District of Missouri likewise held in State of Missouri ex rel. Blue Cross and Blue Shield of Mo. v. Anderson that federal law "is strong, persuasive authority" in interpreting the "meaning of the Missouri rule," as the state rule relating to protective orders in discovery apparently came from the federal rule.⁵² These cases are representative of long precedent from the Supreme Court of Missouri⁵³ and state appellate courts⁵⁴ dictating that Missouri rules of civil procedure similar to federal rules shall be applied so as to achieve the same purpose.

Hence, a sexual harassment plaintiff may simultaneously invoke two sources of law, state and federal, to protect her privacy. Missouri case law dictates that state courts should interpret the MHRA consistent with federal law.⁵⁵ Missouri precedent also dictates that state courts should follow federal decisions governing protective orders.⁵⁶ Federal cases involving Title VII claims show not only a national trend toward protecting victims from disclosure of their sexual history,⁵⁷ but also a specific Missouri case issuing a protective order to protect the victim's privacy.⁵⁸ Thus, a state court hearing a MHRA claim must regulate the discovery process so as to safeguard women's privacy.

The developments in state sexual harassment law improve the protection of victims' privacy in Missouri. Though further reforms may be indicated,⁵⁹ particularly for other state civil claims, Missouri women victimized by harassment in the workplace can turn to state courts with confidence that they will be protected.⁶⁰

V. Conclusion

The substantive and procedural aspects of Missouri sexual harassment law make state courts the venue of choice⁶¹ for plaintiffs. Missouri procedure in sexual harassment cases is at least as protective of the victim's right to privacy as federal procedure because of the availability of protective orders during discovery. Further, Missouri substantive law in such cases is actually more protective of victims than federal law by reason of the strict liability standard. For these reasons, attorneys should counsel plaintiffs to consider state courts as a forum for litigation because of the substantial protection they will receive. The rules of ethics require it.⁶²

Footnotes

¹ Lewis B. Gainor (University of Minnesota, J.D, cum laude, 2003) is an associate in the Denver, Colorado office of Ruegsegger, Simons, Smith & Stern, LLC, where he practices workers' compensation and employment law. Lewis became committed to victims' rights when he attended the University of Missouri-Columbia School of Law as a visiting student in 2002-2003. During this period, he represented victims of domestic violence in adult abuse courts, as well as abused and neglected children in protective custody cases in juvenile courts, under the supervision of Professor Mary M. Beck. Professor Beck is the director of the law school's Family Violence Clinic. She supervises Rule 13 certified law students in representing indigent women and children from more than 14 Missouri counties in domestic violence cases.

² See §§ 213.010, RSMo 2000, et seq.

³ For a succinct analysis of the developments in MHRA case law favoring plaintiffs, consult Anthony J. Romano, Missouri Supreme Court Ruling May Create New Deal in Employment Law, The Business Journal of Kansas City (Mar. 3, 2003) at http://kansascity.bizjournals.com/kansascity/stories/2003/03/03/smallb2.html. (Romano asserts the following reasons, which are outside the scope of this article, make the MHRA pro-plaintiff:

• Unlike the federal discrimination statutes - such as Title VII and the Age Discrimination in Employment Act - damages under the Missouri Human Rights Act are theoretically unlimited.

• The jury pool in state court is generally viewed as less conservative (and thus more likely to award higher verdicts), especially in urban areas, where the majority of employment law cases are brought.

• State appeals courts are less likely to reduce damage awards than federal appeals courts.

• Summary judgment is more readily granted in federal court than state court.)

⁴ For an in-depth explanation of the application of a cost-benefit analysis to the litigation process, see Dan L. Goldwasser, Applying Cost/Benefit Analysis to the Litigation Process, at 117 (PLI Litig. & Admin. Practice Course Handbook Series No. 550, 1996).

⁵ At least one scholar has asserted that in every case, the determinative factor in deciding to sue is whether crucial evidence, particularly a certain document, will be found during discovery. See Diane Goldner, Borrowing a Tool from Business School, Am. Lawyer, July-Aug. 1986 at 12.

⁶ Sup. Ct. R. 4-1.4(b).

⁷ Sup. Ct. R. 4-2.1.

⁸ Section 213.010, RSMo, et seq. The administrative process is unremarkable.

⁹ See 42 U.S.C. §§ 2000e et seq.

¹⁰ 42 U.S.C. § 2000-2 (2000).

¹¹ See Michael D. Vhay, The Harms of Asking: Towards a Comprehensive Treatment of Sexual Harassment, 55 U. Chi. L. Rev. 328, 329-33 (1988).

¹² Quid pro quo sexual harassment is the conditioning of a job or job benefits or penalties on the woman's submission to sexual demands.

¹³ Hostile work environment is established by showing a substantially discriminatory work environment condoned by the employer.

¹⁴ Section 213.055.1(1), RSMo. Section 213.010(5) provides that discrimination is defined as "any unfair treatment based on . . . sex."

¹⁵ Cunningham v. Kansas City Star Co., 995 F. Supp. 1010 (W.D. Mo. 1998).

¹⁶ Id.

¹⁷ See Judith Olans Brown et al., Institutional Barriers to Women in the Workplace: The Mythogenesis of Gender: Judicial Images of Women in Paid and Unpaid Labor, 6 UCLA Women's L.J. 457 (1996) (claiming that the negative stereotypes of women are everywhere in American jurisprudence).

¹⁸ Some scholars have called for a reworking of the elements so as to remove the "welcomeness element" altogether. For a discussion of this idea, consult Mary F. Radford, By Invitation Only: The Proof of Welcomeness in Sexual Harassment Cases, 72 N.C. L. Rev. 499, 521 (1994).

¹⁹ 807 F. Supp. 506, 512 (N.D. Iowa 1992), rev'd 989 F.2d 959 (8th Cir. 1993).

²⁰ 27 F.3d 1316 (8th Cir. 1994).

²¹ 913 F. Supp. 1045 (S.D. Ohio 1995).

²² See Susan Estrich, Sex at Work, 43 Stan. L. Rev. 813, 827 (1991).

²³ See Mitchell v. Hutchings, 116 F.R.D. 481 (D. Utah 1987).

²⁴ See Alberts v. Wickes Lumber Co., 1995 WL 117886 (N.D. Ill. 1995).

²⁵ See Judd v. Rodman, 105 F.3d 1339 (11th Cir. 1997).

²⁶ Sup. Ct. R. 4-1.2(a) (emphasis added).

²⁷ Fed. R. Evid. 412.

²⁸ Section 491.015, RSMo 2000.

²⁹ Congress extended Rule 412 to apply to civil actions with the purpose of protecting witnesses from "invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-finding process." See Fed. R. Evid. 412 advisory committee's note.

³⁰ Section 491.015, RSMo 2000.

³¹ See Fed. R. Civ. P. 26.

³² See Rule 56.

³³ Rule 56.01(b)(1).

³⁴ See Andrea A. Curcio, Rule 412 Laid Bare: A Procedural Rule That Cannot Adequately Protect Sexual Harassment Plaintiffs From Embarrassing Exposure, 67 U. Cin. L. Rev. 125 (1998) (arguing that the courts have failed to protect women).

³⁵ See Fed. R. Civ. P. 26(c).

³⁶ Missouri courts may rely upon Missouri Rule 56.01(c), which governs protective orders in the discovery process and is modeled after Federal Rule of Civil Procedure 26(c). A fuller discussion of this rule follows in the article.

³⁷ See Jane H. Aiken, Protecting Plaintiffs' Sexual Pasts: Coping with Preconceptions Through Discretion, 51 Emory L.J. 559 (2002).

³⁸ See id.

³⁹ 11 S.W.3d 754 (Mo. App. E.D. 1999).

⁴⁰ Id. at 767.

⁴¹ Id.

⁴² 524 U.S. 775 (1998).

⁴³ Id. at 807.

⁴⁴ See Curcio, note 34, at 128.

⁴⁵ See Pollock at 754; see also Cook v. Atoma Int'l of America, Inc., 930 S.W.2d 43 (Mo. App. E.D. 1996) (holding that "[d]ecisions under the MHRA are guided by federal employment discrimination decisions as well as Missouri law."); Gipson v. KAS Snacktime Co., 171 F.3d 574 (8th Cir. 1999) (holding that "[i]n applying the MHRA, [the court is] guided not only by Missouri law but also by federal employment discrimination decisions"); Stuart v. General Motors Corp., 217 F.3d 621 (8th Cir. 2000) (holding that since the employee's "claims under the MHRA were essentially the same as her Title VII claims," a dismissal of the federal claims necessitated dismissal of the MHRA claims); Cunningham v. Kansas City Star, 995 F. Supp. 1010 (W.D. Mo. 1998) (holding that the elements of a Title VII and MHRA sexual harassment claim are the same); Swyers v. Thermal Science, Inc., 887 S.W.2d 655 (Mo. App. E.D. 1994) (holding that "[i]n interpreting the MHRA, Missouri courts have adopted federal case law from Title VII cases as well as case law from other states interpreting analogous discrimination statutes.")

⁴⁶ See, e.g., Sanchez v. Zabihi, 166 F.R.D. 500 (D. N.M. 1996); Priest v. Rotary, 98 F.R.D. 755 (N.D. Cal. 1983).

⁴⁷ Rule 56.01(c), Fed. R. Civ. P. 26(c).

⁴⁸ See State ex rel. Hoffman v. Campbell, 428 S.W.2d 904 (Mo. App. E.D. 1968) (holding that discovery rules "contemplate the exercise of judicial discretion").

⁴⁹ See State ex rel. Anheuser v. Nolan, 692 S.W.2d 325 (Mo. App. E.D. 1985).

⁵⁰ See 990 F. Supp. 1138 (E.D. Mo. 1997).

⁵¹ 835 S.W.2d 540 (Mo. App. E.D. 1992).

⁵² 897 S.W.2d 167 (Mo. App. S.D. 1995).

⁵³ See Kingsley v. Burack, 536 S.W.2d 7 (Mo. banc 1976) (holding that since the federal and state joinder rule were practically the same, it was "appropriate to use federal precedents as a guide to application of" the rule).

⁵⁴ See Jackson v. Christian Salveson Holdings, 914 S.W.2d 878 (Mo. App. E.D. 1994) (holding that state rule of civil procedure permitting appeal from a final "judgment on a single claim when multiple claims are asserted in a single action . . . was copied almost verbatim from [the applicable] Federal Rule of Civil Procedure 54(b)," so federal cases interpreting the rule are highly persuasive); Ganaway v. Shelter Mut. Ins. Co., 795 S.W.2d 554 (Mo. App. S.D. 1990) (holding that because the state rule controlling summary judgment is similar to the federal rule, "federal decisions construing the federal rule are persuasive in construing and applying [the state] Rule"); Bauldin v. Barton County Mut. Ins. Co., 606 S.W.2d 444 (Mo. App. S.D. 1980) (comparing V.A.M.R. Civil Rules 55.27 and 55.27(a) to Fed. R. Civ. P. 12(b), the court held that where a state rule is essentially the same as a federal rule of civil procedure, "[f]ederal precedents are not controlling, but they are persuasive."); State ex rel. Litton Bus. Sys., Inc. v. Bondurant, 523 S.W.2d 587 (Mo. App. W.D. 1975) (interpreting the Missouri rule for production of business records consistent with cases relating to the corresponding federal rule); Lynch v. Webb City Sch. Dist. No. 92, 418 S.W.2d 608 (Mo. App. S.D. 1967) (interpreting the Missouri summary judgment rule consistent with the federal rule).

⁵⁵ See Pollock at 754.

⁵⁶ See notes 51-52.

⁵⁷ See note 46.

⁵⁸ See E.E.O.C. v. Danka Indus., Inc., note 50.

⁵⁹ For a general discussion of possible reforms of the rules of evidence and discovery, see, generally, Curcio, note 34.

⁶⁰ At least one scholar has predicted that because of the strict liability standard imposed in Pollock, note 39, state courts should expect to see an increase in litigation. See C. Wayne Davis, Can Employers Be Held Strictly Liable for Sexual Harassment? 56 J. Mo. Bar 225, 229 (2000).

⁶¹ See Romano, for additional reasons the MHRA is favorable to plaintiffs.

⁶² See Sup. Ct. R. 4-1.4(b), 4-2.1.