How a dysfunctional Missouri Human Rights Commission slows discrimination lawsuits

When the chairman of the Missouri Commission on Human Rights spoke last week against adding sexual orientation and gender identity to the state’s non-discrimination law, the remarks provoked outrage among Democrats and LGBTQ advocates.

But the comments from the chairman, Timothy Faber, have also turned a spotlight on the commission itself, which lawyers and employment discrimination experts say is a broken agency unable to effectively respond to allegations of discrimination.

The 11-member commission has only four members currently, blocking the panel from taking votes. Its professional staff continue to conduct investigations and process paperwork, but lawyers and court documents paint a picture of a beleaguered agency where paperwork isn’t always turned around on time and investigations are often a cursory exercise.

“They couldn’t treat my clients any worse than they currently do,” said Gene Graham, a Kansas City area attorney who specializes in employment discrimination and suggested the commission tries to please the business community at the expense of victims of discrimination.

“I’m very contemptuous of that agency and the political agenda that seems to be in control down there, which is to throw a wrench into every case and do everything you can to create hurdles for victims of discrimination to have to jump over just to get a little justice.”

In Missouri, individuals who believe they have been discriminated against must take their complaints to the commission before they can sue in state court. That kicks off an investigative process that, at least theoretically, holds out the possibility that the commission will eventually find probable cause that discrimination occurred – or that it will serve as a mediator to help both sides reach a settlement.

The reality is that the commission rarely determines discrimination occurred. It found probable cause of discrimination in just five cases in the 2022 budget year, despite receiving more than 1,000 complaints, according to statistics included in the Missouri Department of Labor’s annual report. An additional 11 cases were closed after a negotiated settlement was reached.

The Missouri Commission on Human Rights has been in place for decades, with a focus on discrimination in employment, housing and public accommodations. The governor appoints its members, which are confirmed by the state Senate. No more than six members can be from a single political party.

Complaints of backlogs are nothing new – reports of problems can be found at least as early as 1990. But the episode involving Faber has only confirmed for some attorneys and others familiar with Missouri employment law that the commission’s credibility is at a low point.

When Faber testified at a Senate hearing last week, he initially didn’t identify himself as the commission chair, and instead said he was speaking on behalf of the Missouri Baptist Convention, which represents Southern Baptist churches. He said the bill cannot be separated from religion, and particularly religious liberty.”

He also warned that expanding protections to sexual orientation and gender identity would add to the commission’s workload and exacerbate its backlog.

Missouri Senate Democrats on Monday sent Republican Gov. Mike Parson, who appointed Faber, a letter requesting Faber’s removal. The letter says Faber’s position is in “direct contradiction” to the mission of the commission.

The commission didn’t respond to questions on Tuesday.

Parson spokeswoman Kelli Jones, in response to questions, urged members of the public to apply for a commission appointment – echoing comments she initially provided The Star last week after Faber’s comments.

“We would like to make more appointments to the commission, which would restore their quorum and allow them to resume their duties,” Jones said.

The federal Equal Employment Opportunity Commission, which examines alleged violations of federal anti-discrimination law in employment, has “spectacular mediators” that it uses to try to resolve cases early, said Alan Rupe, an attorney who practices in both Missouri and Kansas. “And that doesn’t seem to be the case with the Missouri agency.”

Still, Rupe said that’s been the situation in Missouri for many years.

Over the past decade, the percentage of cases that result in a probable cause determination by the commission has always been miniscule, usually hovering around 1 to 2%. But the total number of probable cause determinations used to be much larger than it is today.

Probable cause is a legal term meaning there’s reasonable grounds to believe something occurred.

In 2013, 33 probable cause findings were made, compared to zero in 2020, for instance. No probable cause findings are listed for 2021, either. Some lawyers suggested a 2017 change to the state’s anti-discrimination law has contributed to the commission’s difficulty bringing cases by raising the legal standards related to proving discrimination.

Complaints often end with lawyers for accusers requesting “right to sue” letters as soon as possible – typically 180 days after a complaint is filed. The commission is required to provide the letters, which allow those who say they have been discriminated against to file lawsuits in state court.

Nearly half of the more than 1,100 complaints filed during the 2022 budget year ended with right-to-sue letters. The commission is housed within the department.

“For claims that have any merit, it may very well just function as a ‘you’ve got to do this and then you just have to wait,’” said Rigel Oliveri, a University of Missouri School of Law professor who teaches on employment discrimination, said of the commission process.

The all-important ‘right-to-sue’ letter

Some lawyers say the commission has problems even meeting its obligation to issue right-to-sue letters.

A lawsuit filed in Jackson County Circuit Court in late February alleges the Missouri Commission on Human Rights itself violated the state’s human rights law last year, which prohibits aiding and abetting discrimination. The plaintiff, Kansas City resident Mary McClendon, originally filed a charge of discrimination against a former employer in February 2021 and requested a right-to-sue letter that September.

In May 2022, McClendon filed a petition for a writ of mandamus – essentially asking the court to order the commission to provide a letter. A judge issued a writ on June 14, 2022, but McClendon alleges the commission still didn’t provide one for more than three weeks and only did so after her lawyers filed a motion for a show cause order, asking the commission to explain why it hadn’t complied.

In total, 507 days passed between McClendon first filed the charge of discrimination and when she received her right-to-sue letter.

“Plaintiff was forced to borrow money, and incurred interest on these loans,” McClendon’s complaint says. “Plaintiff likewise was forced to deal with a traumatic, difficult event in her life for nearly a year longer that she would have been absent the actions of Defendant.”

A search of Missouri court records shows a handful of lawsuits in recent years asking judges to order the commission to produce right-to-sue letters. And attorneys who practice employment law say they have sometimes encountered difficulties obtaining them.

“We’ve had some issues ourselves with rights to sue,” said Dennis Egan, a Kansas City-based lawyer with decades of experience in employment law. “So lawyers have to go in and try to right things.”

Marcia McCormick, a Saint Louis University School of Law professor who teaches on employment discrimination, said problems providing the letters, which she called an administrative task, “suggests something so much more fundamentally broken than the investigation process isn’t working.”

“It sounds like bigger dysfunction than a backlog,” McCormick said.

Commission lacks resources

The Missouri Commission on Human Rights has a roughly $1.5 million annual budget, with funding split about equally between state and federal sources. It is budgeted for about 26 full-time equivalent positions, including 15 human rights officers, but it’s unclear how many employees are currently on staff.

Daniel Doyle and Robert Bruce, attorneys for McClendon, in a joint interview faulted a lack of resources for the commission to conduct investigations.

“They don’t have the horses to do the work,” Bruce said. “These aren’t bad people, they’re not bad people at all … They are very wonderful human beings. But being their friend doesn’t get you anywhere. I don’t think they have the ability to do their job, that they’re absolutely just overwhelmed.”

State Rep. Doug Mann, a Columbia Democrat, works with the Missouri Commission on Human Rights in his private practice as a civil rights attorney. Over the last few months, he’s seen a steep decline in right to sue letters and investigations, he said.

Mann said this decline has a lot to do with the commission’s lack of staff and funding. The work the commission does is crucial and the state needs to do a better job to attract employees, he said.

“We as a state need to put a lot more emphasis on protecting human rights of all protected classes,” Mann said. “They need to be able to pay their workers competitive wages. It’s a tough job going through and investigating these terrible instances of discrimination.”

The Star’s Kacen Bayless contributed reporting