Dear Editor:

The article, “The Missouri Human Rights Act is the Law of Choice for Sexual Harassment Victims’ Privacy” in the January-February [issue] of the Journal requires a correction. The article states that the Pollock v. Wetterau Food Distribution Group decision, 11 S.W.3d 754 (Mo. App. E.D. 1999), imposes strict liability on employers for supervisory sexual harassment. 60 J. Mo. B. 21,24 (2004). However, the Missouri Commission on Human Rights (MCHR) amended the regulation imposing strict liability, 8 C.S.R. 60-3.04(17)(C), subsequent to the Pollack decision.

The MCHR ostensibly amended the regulation to bring the Missouri Human Rights Act (MHRA) into accord with Title VII. See Pollock at 767, n.3. At 8 C.S.R. 60-3.04(17)(D), the MCHR incorporated the affirmative defense set forth in Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). The regulation as it stands today, however, takes the teeth out of the MHRA altogether.

The Title VII standard as established in Faragher is a strict liability standard, subject to only one affirmative defense available where the sexual harassment has not culminated in tangible employment action. See Pollock at 767, n.2; Anderson v. Dillard’s, Inc., 109 F. Supp. 2d 1116, 1125, n.5 (E.D. Mo. 2000); Indest v. Freeman Decorating, Inc., 168 F.3d 795, 803-04 (5th Cir. 1999). In amending 8 C.S.R. 60-3.04(17)(C), the MCHR discarded the federal standard and provided employers with yet another way to escape liability. 8 C.S.R. 60-3.04(17)(C) abrogates the federal standard of liability because it holds employers liable only “if the employer knew or should have known of [the sexual harassment].” Id.(emphasis added). In addition to this negligence-like standard of liability, employers also have the affirmative defense available in 8 C.S.R. 60-3.04(17)(D)(1). These amendments have crippled the MHRA in comparison to Title VII.

The amended regulations not-withstanding, the MHRA is a statute under which sexual harassment victims may seek protective orders for their privacy. In promulgating the recent amendments to the regulations, however, the MCHR abandoned the purpose of Title VII and years of Missouri state court precedent recognizing that purpose. See 60 J. Mo. B. 21, 24, n.45. Under these circumstances, I cannot say the MHRA is the substantive law of choice for sexual harassment victims.

Sincerely,
Lewis B. Gainor (the author)
Denver, Colorado