Employment lawyer Mark Jess is on a hell of a run. His clients received favorable outcomes in two separate discrimination cases against the City of Kansas City, Missouri. The verdicts, worth about $5.6 million, came two days apart.
The cases are notable for several reasons, including Jess' fashion choices. A product of Marshfield, Missouri, Jess wears cowboy hats to the courthouse.
Jess didn't always dress like a cattleman. After getting his law degree from Mizzou in 1990, he worked at big firms. Then he decided to strike out on his own, and the sartorial manacles came off. "I get to wear jeans and boots and don't have to play the corporate game as much," says Jess, who rents office space in the Livestock Exchange Building, appropriately enough.
Jess' western attire probably appealed to the jury in Platte County that awarded one of his clients $2.1 million.
The case stemmed from a vacancy that was created when Marcia Walsh, a Municipal Court judge in Kansas City, retired in 2006. The City Council rejected a slate of potential replacements because the three candidates were all white. One of the candidates, Melissa Howard, was dropped from the list and replaced by an African-American.
Howard sued. "It's just discrimination, pure and simple," Jess says.
Forced to acknowledge that race had knocked Howard out of the running, the city argued that judges are public officials who are not protected by the Missouri Human Rights Act. The Missouri Supreme Court disagreed, ruling on January 25 that the jury's 2008 verdict should stand.
Two days later, Jess won a case in Jackson County on behalf of two women who sued the city for discrimination and retaliation.
The women, who are white, worked as budget analysts. They were laid off in 2009. Jess convinced a jury that the downsizings were unjust, citing the women's exemplary performance evaluations.
Jess portrayed City Hall as a workplace rife with racial tension. In this narrative, skin color trumped competence. One of the plaintiffs, Jordan Griffin, claimed that then City Manager Wayne Cauthen had appointed her the acting commissioner of revenue on the mistaken belief that she would favor minorities, a rep that caused her to be known as "white chocolate." (Cauthen, who is black, had performance measures in his contract tied to minority hiring.)
LaTrisha Underhill, a former assistant city manager who supposedly assured Cauthen that Griffin would protect and promote minorities, was cast by Jess as a villain. Interestingly, Underhill was a Jess client for a brief time. She engaged his services in 2007, when she came under investigation for sending and receiving sexually explicit e-mails on city equipment.
At the time, Jess suggested that Underhill was being targeted because she was black. "The totality of the allegations made it clear that the caller and/or whomever else was behind the allegations believed that Ms. Underhill, as a young, African-American female, could not have achieved her position with the city based on her abilities and education," he said in an e-mail to The Kansas City Star.
Underhill eventually resigned. Jess says he stopped working with her before he met Griffin and Kathryn Low, the other plaintiff in the recently decided case. He says none of the information he used to litigate their case was privileged.
Victories in hand, Jess is highly critical of the way city officials dealt with his clients' claims. He believes that Howard may collect $3 million once interest is calculated. Griffin and Low are entitled to $2.6 million in damages. Jess says the city never offered a Howard a dime and lowballed Griffin and Low during settlement talks.
Jess says whoever is managing the city's risk is "incredibly negligent." He adds: "As a taxpayer, I just can't believe this is allowed to go on."
He'll believe it when he collects his contingency fees.
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An Excerpt from St. Louis Today describes what is going on very well:
Fortunately the Missouri Human Rights Act does prohibit discrimination based on race, gender (which includes sexual harassment), age, disability or religious belief in any form, at any time, in any way. That is a zero-tolerance policy. Previously, we have said that we so despise racism and sexism that we refuse to accept, at least legally speaking, the slightest bit of discrimination. HB 205 changes the law so that now discrimination must be proven to be a motivating factor. This isn't a zero-tolerance policy — it's a 49 percent-tolerance policy.
Under this bill, as long as someone can argue that another factor at least equals or exceeds an act of racism, sexism or religious intolerance, Missouri law would not apply. For example, a boss heard using racial epithets while firing a black employee could say that race was a factor in the decision, but not a motivating factor for firing the employee, and he would be protected. A company that passes a woman over for promotion multiple times could concede that the fact that she is a woman contributed to that, but the real motivation is “she is difficult to deal with.”
In addition, this legislation would completely exempt individuals from liability for their actions. A restaurant manager who refuses to serve a Muslim patron because of religious beliefs would be completely free of liability if this becomes law. A boss who tells a female employee that the best way to get a raise or get more hours is to have a relationship with him also would be completely off the hook. Removing individual liability for sexual harassers not only increases the danger to woman in the work place by removing an important deterrent, it also contradicts the idea of taking responsibility for our own actions that has been so prominent in our political rhetoric.
Call your senator and your representative to find out where they stand on HB 205. Let's join together and make it clear that Missouri is committed to a zero-tolerance policy for sexual harassment and discrimination.
I heard the state legislators are trying to change the law so that no one can sue their employers for discrimination or whistleblowing? Corporations are at it again, trying to screw the little guy...all for a buck.
I've heard that he is an awesome lawyer. Use to be a big wig at Bryan Cave before he started working for the little guy. Kudos Mr. Jess! Keep employers honest in Missouri, it benefits everyone, including the taxpayers, if this type of conduct is stopped.
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