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Full-Text Articles in Law
Causation Confusion: Missouri’S Adoption Of A Contributing Factor Standard For Workers’ Compensation Retaliation Claims, Suzanne L. Specker
Causation Confusion: Missouri’S Adoption Of A Contributing Factor Standard For Workers’ Compensation Retaliation Claims, Suzanne L. Specker
Missouri Law Review
As this Note argues, the exclusive cause standard frustrated the statute’s purpose and effectively sanctioned employer discrimination and retaliation against employees who filed workers’ compensation claims. In Templemire v. W&M Welding, Inc., the Supreme Court of Missouri corrected this mistake by adopting the “contributing factor” causation standard in lieu of the exclusive cause standard.10 In Part II, this Note analyzes the facts and holding of Templemire v. W&M Welding, Inc. Next, in Part III, this Note explores the legal background of Missouri’s workers’ compensation laws, the historical context and policy considerations behind the development of Section 287.780, and the judicial …
Userra Oxymoron: Termination As A Valid Reemployment Position, The, Breanna Hance
Userra Oxymoron: Termination As A Valid Reemployment Position, The, Breanna Hance
Missouri Law Review
This Note assesses Milhauser’s impact on reemployment claims under USERRA. Part II begins with an analysis of the facts and holding of the case. Next, Part III synthesizes the background of USERRA, provides an overview of the statute, and introduces the escalator principle. Part IV outlines the court’s rationale in deciding Milhauser. Finally, Part V discusses the impact of Milhauser on USERRA reemployment claims. This Note argues that: (1) the court’s reliance on USERRA regulation § 1002.194 was misplaced because the court’s interpretation presents a conflict between two sections of the statute and creates burden of proof issues; (2) the …
Equal Exposure Brews Frustration For Employees: Court Filters Personal Comfort Doctrine Through Workers' Compensation Amendments, Breanna Hance
Equal Exposure Brews Frustration For Employees: Court Filters Personal Comfort Doctrine Through Workers' Compensation Amendments, Breanna Hance
Missouri Law Review
This Note will examine the status of the “arising out of and in the course of employment” requirement after Johme. Part II begins with an analysis of the facts and holding of Johme. Next, Part III synthesizes the background of workers’ compensation laws in Missouri, including the establishment of the workers’ compensation system, the development of the personal comfort doctrine, the 2005 statutory revisions, and two post-2005 cases interpreting the changes. Part IV outlines the court’s rationale in deciding Johme. Finally, Part V discusses the impact of Johme on the “arising out of and in the course of employment” requirement. …
Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law, Kerri Lynn Stone
Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law, Kerri Lynn Stone
Missouri Law Review
This Article argues that the stray comments "doctrine" does more harm than good and that those courts wishing to grant a defendant summary judgment on a claim should have to do so by looking at the totality of the circumstances, rather than summarily using a single facet of a comment to dismiss it from consideration. It points out that the doctrine and its premises fail to comport with even a basic understanding of social science and how people foment, act upon, and reveal discriminatory bias. Interestingly, another judge-made doctrine built into employment discrimination law - the same actor inference - …
Eeoc Reinforces Broad Interpretation Of Adaaa Disability Qualification: But What Does Substantially Limits Mean, Carol J. Miller
Eeoc Reinforces Broad Interpretation Of Adaaa Disability Qualification: But What Does Substantially Limits Mean, Carol J. Miller
Missouri Law Review
Part I of this Article recognizes the difficulty in calculating how many workers are disabled. Such difficulties have been used by the courts to justify differing interpretations of what constitutes a disability. This Part also discusses the origin of the ADA and provides a brief overview of the 2008 ADAAA. Part I of the Article examines the United States Supreme Court's interpretations that narrowed the construction of what is a "substantial limitation" and what is an ADA disability. This Part highlights the lack of consensus between the courts, Congress, and the EEOC, as well as the courts' apparent disregard of …
Employees' Decade: Recent Developments Under The Mhra And The Employers' Potential Rebound, The, Dane C. Martin
Employees' Decade: Recent Developments Under The Mhra And The Employers' Potential Rebound, The, Dane C. Martin
Missouri Law Review
This Note will identify the considerable changes and varying interpretations of the MHRA over the last decade, analyze the optimal balance between the competing, important interests, and determine any potential need for amendment, including consideration of the various proposals currently before the legislature. Part 11 thus analyzes the four major areas of difficulty in the adjudication of MHRA claims in the last decade, including jury trials, available damages, the burden of proof, and individual liability. Next, Part III recognizes the most recent developments under the MHRA. And lastly, Part IV involves a two-part discussion beginning with the policy and effect …
Resurrection Of A Dead Remedy: Bringing Common Law Negligence Back Into Employment Law, Amanda Yoder
Resurrection Of A Dead Remedy: Bringing Common Law Negligence Back Into Employment Law, Amanda Yoder
Missouri Law Review
Prior to the enactment of workers' compensation laws' across the United States and in Missouri, many employees injured on the job were left with no redress. In 1921, less than 3,000 of the nearly 50,000 employees injured in Missouri received compensation.2 During this time, an estimated 25,000 employees died on the job in industrial accidents but less than twenty percent of their families received compensation.3 Those families that were compen- sated still had to bear the cost and delay of litigation.4 In response, legislatures sought to protect employees from the risks of the workplace and transfer the burden of recovery …
Anti-Discrimination Law In Peril, Trina Jones
Anti-Discrimination Law In Peril, Trina Jones
Missouri Law Review
In this short Essay, I explore the tendency of courts to summarily dismiss employment discrimination claims and consider whether the judicial skepticism, if not outright hostility, we are witnessing is limited to statutory actions under Title VII or is instead part of a broader movement against discrimination claims. In Part II, I suggest that between 1973, when McDonnell Douglas was decided, and 2009 societal beliefs about the prevalence of discrimination in the United States changed. In 1973, as the country emerged from the Jim Crow era, the presumption was one of widespread discrimination. Today, in so-called "post-racial" America, an opposite …
Pretext In Peril, Natasha T. Martin
Pretext In Peril, Natasha T. Martin
Missouri Law Review
This Article addresses the connections among substance, procedure, and equality in the American workplace. Exploring the deepening struggle for plaintifs under Title VII of the Civil Rights Act of 1964, this Article seeks to add clarity to an enduring quandary - why does Title VII fail to combat the prejudicial disparate treatment it was designed to eradicate? This Article offers a critique of the hardships shouldered by plaintiffs in proving contemporary workplace discrimination. Challenging the seemingly unfettered discretion of the courts in evaluating claims of workplace bias, this Article pursues the interplay of procedural and substantive law to expose how …
Discrimination Redefined, Ann. C. Mcginley
Discrimination Redefined, Ann. C. Mcginley
Missouri Law Review
I agree with Professor Martin's premise that it has become increasingly difficult to prove disparate treatment, especially in light of courts' aggressive use of summary judgment. I argue in this essay that the courts' retrenchment in Title VII cases results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of"pretext." Moreover, I posit that the recent Supreme Court case of Ricci v. …
Pretext Without Context, D. Wendy Greene
Pretext Without Context, D. Wendy Greene
Missouri Law Review
First, this response addresses the lower courts' opinions in Ash v. Tyson Foods, Inc., as well as the Supreme Court's per curiam opinion in this case, which espouses a more contextualized analysis of pretext in race-based disparate treatment cases. Next, this response examines Holiness v. MooreHandley, Inc. and the acontextual, colorblind analysis the court applied. Each case illustrates the negative effects of courts analyzing pretext without context at different stages of race discrimination litigation: during post-trial phases in Ash v. Tyson Foods, Inc. and at the summary judgment stage in Holiness v. Moore-Handley, Inc. Ash v. Tyson Foods, Inc. and …
Missouri's Section 287.865.5 Proof Of Claim Filing Requirement: Are Injured Employees Getting A Fair Shake, Carrie B. Williamson
Missouri's Section 287.865.5 Proof Of Claim Filing Requirement: Are Injured Employees Getting A Fair Shake, Carrie B. Williamson
Missouri Law Review
This Article argues that Section 287.865.5's bankruptcy proof of claim filing requirement is bad law because it runs counter to the purposes of Missouri's workers' compensation system. It also reveals significant gaps found at the confluence of workers' compensation law and bankruptcy law and exacerbates cracks in the systems. The cracks in turn become traps for the unwary injured worker. Because of these problems, the Section 287.865.5 proof of claim filing requirement should be amended so that it operates more in harmony with federal bankruptcy law. This Article proposes several amendments to the statutory provisions pertaining to the proof of …
Not Taking Care Of Business: State Responds To The Employee Free Choice Act, Preemption, And The Nlra, Mega Maskery Luecke
Not Taking Care Of Business: State Responds To The Employee Free Choice Act, Preemption, And The Nlra, Mega Maskery Luecke
Missouri Law Review
In 2009, Senator Ted Kennedy (D-MA) and Representative George Miller (D-CA) introduced legislation in their respective chambers that would significantly change how workers form unions under the National Labor Relations Act (NLRA). Under the current process, at least thirty percent of a company's employees must first sign cards that accompany a petition requesting union representation, after which the employees or the employer can ask the National Labor Relations Board (NLRB) to hold a secret ballot election to poll employees on the issue of whether a majority wants to be represented by a union. If passed, the Employee Free Choice Act …
High Cost Of Low-Cost Workers: Missouri Enacts New Law Targeting Employers Of Unauthorized Workers, The, Michael B. Barnett
High Cost Of Low-Cost Workers: Missouri Enacts New Law Targeting Employers Of Unauthorized Workers, The, Michael B. Barnett
Missouri Law Review
This note seeks to explain Missouri's enactment of a law requiring use of E-Verify by certain employers, track recent developments that have made it more difficult to employ unauthorized workers, and advocate the position that this legislation will be upheld in the face of legal challenges. The following Section addresses federal immigration law and the subsequent creation of the E-Verify program. It also examines Missouri's recent enactment that requires some employers to enroll in the E-Verify program and provides stiff penalties for any entity that employs unauthorized workers. Section III considers recent cases out of Arizona, Oklahoma, and Missouri that …
Pragmatism Over Politics: Recent Trends In Lower Court Employment Discrimination Jurisprudence, Lee Reeves
Pragmatism Over Politics: Recent Trends In Lower Court Employment Discrimination Jurisprudence, Lee Reeves
Missouri Law Review
This Article has five parts. After considering empirical evidence, Part I concludes that judges' political ideology plays only a limited role in their decisionmaking. Part II identifies the increase in case filings over the last two decades as a likely non-ideological cause of the increased judicial skepticism towards claims of employment discrimination. This Part begins by examining aggregate trends in the district and appellate caseload and then translates caseload into the more meaningful metric of workload. Part II next evaluates various steps courts have taken to handle these workload increases. Finally, Part II concludes with a discussion of why employment …
Unreasonable - Missouri Rejects A Reasonable Person Standard For Determining Co-Employee Liability Under Badami's Something More Test, Richard D. Worth
Unreasonable - Missouri Rejects A Reasonable Person Standard For Determining Co-Employee Liability Under Badami's Something More Test, Richard D. Worth
Missouri Law Review
Missouri's workers' compensation law has changed dramatically since its common law inception. Co-employee liability for injuries caused to fellow employees has shadowed this change. At common law, employers were not liable for injuries to their employees caused by the actions of fellow employees. However, Missouri's adoption of the Workers' Compensation Act in 1926 shifted the burden of liability for work-related injuries from employees to employers and the general public. Although employers now bear the burden of work-related injures to their employees, Missouri has continued to recognize co-employee liability, but only under limited circumstances. For an employee to lose immunity from …
Employers Beware: The Missouri Court Of Appeals Takes A Bit Out Of The Employment At-Will Doctrine, Daniel P. O'Donnell Jr.
Employers Beware: The Missouri Court Of Appeals Takes A Bit Out Of The Employment At-Will Doctrine, Daniel P. O'Donnell Jr.
Missouri Law Review
In Dunn v. Enterprise Rent-A-Car Co., the Court of Appeals for the Eastern District of Missouri held that Thomas P. Dunn had presented sufficient evidence to state a cause of action for wrongful discharge for refusing to engage in conduct and for reporting conduct which he reasonably believed violated federal securities laws. Dunn continued Missouri's trend of expanding the availability of wrongful discharge actions to at-will employees terminated in contravention of public policy by merely requiring that the employee "reasonably believe" the instances at issue violate the law. This Note argues that the Eastern District was correct in extending the …
Fifty Jurisdictions In Search Of A Standard: The Covenant Of Good Faith And Fair Dealing In The Employment Context, Monique C. Lillard
Fifty Jurisdictions In Search Of A Standard: The Covenant Of Good Faith And Fair Dealing In The Employment Context, Monique C. Lillard
Missouri Law Review
This Article examines what good faith and fair dealing mean in the workplace, particularly where the relationship between employer and employee is otherwise presumed to be "at will." The conclusion is that except in sporadic situations, the concept of good faith and fair dealing is too vague to be helpful to either party or even to the court. The good faith and fair dealing construct, as currently understood, should be abandoned in the employment context, as should the at will presumption. They should be replaced by legislative prohibition of termination absent good cause. The Model Employment Termination Act' is an …