Discrimination lawsuits face jurisdictional waiting game

Not long ago, getting clearance to file a lawsuit claiming discrimination was a perfunctory task. These days, it can push plaintiffs right up to the deadline to seek their day in court.

Under the Missouri Human Rights Act, plaintiffs who claim to have faced employment discrimination based on their sex, race, religion or other factors must first submit their claims to the Missouri Commission on Human Rights and get a letter from that agency allowing them to sue.

State lawmakers overhauled the law in 2017 to impose tougher standards and damage limits on discrimination claims. As before, the law requires claimants to get a right-to-sue letter before proceeding with a lawsuit. However, the law also added a new requirement that the commission “shall make a determination as to its jurisdiction with respect to all complaints.”

Although the law also gives the commission just 180 days to review the case, the commission, citing the apparent mandate to determine jurisdiction, has continued to investigate some claims long after that deadline has passed. The issue resulted in at least four rulings from the Missouri Court of Appeals Western District this year holding that the commission must issue a requested letter after that deadline passes.

Yet some attorneys still have faced reluctance from the commission, even after going back to court to force a letter to be issued.

“This is truly one of the most bizarre things I have ever seen,” Robert Bruce of Doyle & Associates in Kansas City, Kansas, said in an email in July as he was preparing just such a round of litigation. “Trying to explain this to clients makes us sound crazy.”

Bruce and name partner Dan Doyle represent Mary McClendon, who alleges she was subjected to disability discrimination after she was hurt on the job at First Student Inc. As required by Missouri law, she filed her charge of discrimination with the Commission on Human Rights in February 2021.

But, McClendon says, the agency repeatedly declined to issue her a right-to-sue letter, which prevented her from filing a lawsuit based on her claims. Instead, she alleged that the agency said it was still investigating its jurisdiction in the matter.

McClendon’s wasn’t the only such case encountering that issue. Last March, the Western District held in Najib v. Missouri Commission on Human Rights that the commission’s window to investigate the claim — including the mandate to determine jurisdiction — is just 180 days. If the commission isn’t finished with its investigation at that point, it must issue the right-to-sue letter if the plaintiff requests one.

The commission argued in briefs that issuing a letter without a jurisdictional finding “would grant a complainant a right-to-sue letter by the mere passage of time.” It appealed the ruling and continued to withhold right-to-sue letters in the interim. The Supreme Court had since declined to review the Najib case, making that ruling final.

In a recent interview, Joan Swartz of the Law Office of Joan M. Swartz in St. Louis, an attorney for plaintiff Mohammad Najib, said she still hasn’t seen much change. She noted that the Human Rights Act also requires lawsuits to be filed within two years of the alleged act of discrimination, so the longer the commission reviews the claim, the less time there is for plaintiffs — particularly those without lawyers to press for the required letter — to file successfully.

“Justice delayed is justice denied,” Swartz said. “They can cut off claims. It very much affects people’s rights.”

In May, McClendon filed a writ action in Jackson County Circuit Court to force the agency to act. The following month, a judge agreed that the commission had “failed to perform its ministerial duty” and that a right-to-sue letter should be issued “immediately.”

Nonetheless, McClendon said she still received no letter. On June 23, she filed her lawsuit against her employer and attached the writ order in place of the right-to-sue letter. She also filed a show-cause motion with the circuit court asking it to force the commission to act. The commission resisted the motion, arguing that it still had time to appeal, but almost immediately it reversed course and issued the letter — 507 days after the commission first received the case. The lawsuit remains pending in Jackson County.

David McCain of the Missouri Attorney General’s Office wrote at the time that there were “dozens of administrative cases and additional civil actions that involve this issue and remain pending.”

“MCHR is working as diligently as they can with the limited resources they have to resolve these matters in a timely fashion,” he wrote.

Meanwhile, McClendon’s attorneys are pursuing a different line of attack against the commission. On June 24, they filed a complaint with the commission accusing the commission itself of having “aided, abetted, compelled, coerced, incited, assisted, encouraged, or ratified” the discrimination McClendon allegedly suffered by delaying her ability to sue. The complaint also alleges the commission was denying the letter in retaliation for having sought the writ.

Doyle and Bruce cited a 2021 Court of Appeals ruling that said a police officer could pursue a retaliation suit against the law firm of Armstrong Teasdale for comments its attorneys allegedly made while representing the city’s Board of Police Commissioners — even though the law firm wasn’t the officer’s employer. However, the Supreme Court subsequently barred the claim on procedural grounds, leaving it unclear whether such a claim is viable.

Bruce said he’s received no word from the commission on that complaint. The agency’s 180-day deadline to decide whether it can be sued is in December. After that, Bruce said, he may have to once again request a right-to-sue letter.

“I’m sure they’re tired of us bothering them,” he said. “But I’m also sure tons of plaintiffs’ attorneys across the state are bothering them just the way we are because we have clients we have to answer to or are wondering why it takes so long to get up and moving.”

In a statement, the commission said Najib’s finality has clarified what the law requires.

“If a complainant requests in writing that MCHR issue a notice of right to sue, and a complaint has been on file for over 180 days, then MCHR is not required to make jurisdictional determinations and does not require its staff to do so,” the agency said in an email.