Aiding and Abetting Retaliation: Third Party Liability under the Missouri Human Rights Act

On January 12, 2021, the Missouri Court of Appeals for the Western District issued a decision clarifying that third parties outside of an employer-employee relationship may be held liable under the Missouri Human Rights Act (“MHRA”) for “aiding and abetting” discriminatory or retaliatory practices or acts. See State ex rel. Swoboda v. Mo. Comm. Human Rights, et al., -- S.W.3d --, 2021 WL 96027 (Mo. App. W.D. Jan. 12, 2021).

Factual and Procedural Background

This case involved a charge of discrimination under the MHRA by an employee of the Board of Police Commissioners of Kansas City (“BOPC”)—Jim Swoboda (“Swoboda”)—against the BOPC and a law firm previously retained by the BOPC—Armstrong Teasdale (“AT”). BOPC had previously retained AT to defend the BOPC in a separate discrimination lawsuit brought by another BOPC employee. As part of his charge, Swoboda alleged he gave testimony in that separate lawsuit in support of the employee and, in doing so, AT lawyers had made statements to him suggesting he and his career would suffer consequences for doing so. Swoboda further alleged that BOPC retaliated against him in many ways after he provided testimony in that separate lawsuit.

Upon receipt of Swoboda’s charge of discrimination, the Missouri Human Rights Commission (“MHRC”) issued him a right to sue letter against the BOPC, but denied him a right to sue letter against AT, stating the following:

“The investigation of the [] complaint has determined that the [MHRC] lacks jurisdiction over the matter because there is no employer-employee relationship between the Complainant and the Respondent. Therefore, [the MHRC] is administratively closing its case and terminating all [MHRC] proceedings relating to your complaint.”

In response, Swoboda filed a Petition for a Writ of Mandamus with the Circuit Court of Jackson County, asking the Court to order the MHRC to rescind its dismissal and investigate his complaint against AT. After briefing, the Court granted the Petition and entered a Permanent Writ of Mandamus. The MHRC and AT both appealed.

Analysis

On appeal, the Western District addressed and rejected several arguments made by both the MHRC and AT. Most notably, the MHRC and AT both argued that Swoboda could not file a charge of discrimination or sue AT under the MHRA because there was no employer-employee relationship between Swoboda and AT.

The key statutory provision in this case was Section 213.070 RSMo., which, in relevant part, addresses “[a]dditional unlawful discriminatory practices” and states the following:

         It shall be an unlawful discriminatory practice for an employer…

• to aid, abet, incite, compel, or coerce the commission of acts prohibited under this chapter or to attempt to do so; [or]

• retaliate or discriminate in any manner against any other person because such person has opposed any practice prohibited by this chapter or because such person has filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding or hearing conducted pursuant to this chapter…

The Court emphasized the plain and “exceedingly broad” language of this statute as compelling the conclusion that it prohibits retaliation and discrimination by “an employer”—like AT—against “any other person,” and not just that particular “employer’s employees.” In doing so, the Court rejected AT’s argument that “employer” in Section 213.070 only means “an employer of the complaining employee.”

In support of its statutory interpretation, the Court also noted Missouri Supreme Court precedent that expressly stated this statute “does not limit itself to the employer-employee relationship.” (citing Keeney v. Hereford Concrete Prod., Inc., 911 S.W.2d 622, 625 (Mo. banc 1995)). And the Court went into further detail to distinguish the cases relied upon by MHRC and AT to suggest otherwise.

Takeaway

Absent further legislative action or amendments, the aiding and abetting and anti-retaliation provisions of the MHRA will likely continue to be broadly interpreted by Courts, so broad that law firms representing clients accused of discrimination and retaliation may fall within its reach under certain circumstances.

While the Western District did not reach or decide the ultimate merits of Swoboda’s MHRA claims against AT, it noted Swoboda’s complaint “alleges that members of [AT] went beyond mere legal representation and affirmatively took steps to threaten a witness who was to testify in the action. A law firm representing a party in a claim under the [MHRA] should be well aware of the aiding and abetting provisions of the [MHRA] and know it would be a violation to threaten employees for engaging in activity protected by the MHRA.”