Employees can be fired, generally speaking, for any reason other than a handful of protections that are basic to civil rights or work against the public good. To that end, employees may not be fired on the basis of their skin color, religion, nation of origin, gender, or disability. In addition, employees cannot be fired for bringing to light crimes committed by their employer or making known any aspect of their company’s actions that otherwise endanger or act against the public good. Nonetheless, employees are fired for these reasons though, often, their employers fabricate some pretense as the official cause for their wrongful discharge.
The very public firing of Beth Burns, San Diego State University’s women’s basketball coach, made headlines recently as a jury awarded Burns $3.3 million. Her legal team accused SDSU of firing Burns for bringing up issues of gender equity between men’s and women’s athletics. The university threatened to appeal the verdict after it went in Burns’ favor, and Burns agreed to settle the suit to put the entire situation behind her.
The university claimed that they terminated Burns’ contract because of an incident that occurred on the sidelines between herself and a male assistant coach. Burns had a reputation for being a fierce competitor with a fiery personality. The university claimed that during that incident, she went too far. The jury did not buy it. They ruled that gender discrimination and retaliation played a contributing role in the university’s decision to fire her. At the time of her firing, Burns was the winningest coach in SDSU history.
What Would Have Happened to Burns in Missouri?
The contributing factor clause allowed Burns to win her case. In Missouri, that was repealed last year when Governor Eric Greitens signed SB 43 into law. Before SB 43, Missouri also used a contributing factor metric to determine if the termination of an employee was lawful or not. In other words, an employee need only prove that discrimination or unlawful retaliation was a contributing factor in the decision to fire him or her.
After SB 43 was passed, the standard of proof was effectively raised to a key determining factor. In other words, after the passing of SB 43, an employee bringing a suit against an employer would have to prove that he or she was were fired solely for discriminatory reasons and not that discrimination contributed to the decision.
It is difficult to say if Beth Burns would have been able to prove her case in a Missouri Court. If a Missouri jury determined that Burns was fired because she raised concerns about gender equity and not for the reasons that the university’s defense argued, then she may very well have won the case anyway.
Even in Missouri, a jury need only believe that the plaintiff’s story is more likely than the defendant’s pretense. Here, the defense’s pretense was thin and even testimony from the university officials may have worked in Burns’ favor.