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Latest from Baker Sterchi Cowden & Rice LLC

ABSTRACT: First AI software case involving discriminatory filtering of potential applicants is settled by the EEOC for $365,000; EEOC provides guidance on how to avoid discriminatory practices with AI.

Artificial Intelligence (AI) software has become increasingly popular in corporate America as a tool for HR to use in recruitment and talent acquisition. Recent studies show that 85% of U.S. companies are using AI software in some capacity, with nearly 80% of those companies using AI in hiring and recruitment. As a result, the EEOC created a task force in 2021 through the Artificial Intelligence and Algorithmic Fairness Initiative to address…
Continue Reading EEOC Enters into First Settlement Involving AI Software Discrimination

ABSTRACT: The Third Circuit Court of Appeals found a waiver of sovereign immunity under the Fair Credit Reporting Act (“FCRA”) and reversed a District Court’s dismissal in favor of the United States Department of Agriculture Rural Development Rural Housing Service. Now two Circuits (the Third and Seventh), plus the District of Columbia, have found that the FCRA unequivocally and unambiguously waives the federal government’s sovereign immunity from private damages claims.
We have our eyes on Department of Agriculture Rural Development Rural Housing Service v. Reginald Kirtz, where the Supreme Court will resolve a Circuit Split regarding whether the Fair…
Continue Reading The Scales Tilt Away from the Federal Government – Third Circuit Joins the Seventh Circuit in Finding Waiver of Sovereign Immunity by the Fair Credit Reporting Act (FCRA)

ABSTRACT: The Eighth Circuit Court of Appeals ruled that Defendant’s removal to federal court based on (1) diversity; (2) preemption; (3) and U.S.C. § 1442(a)(1) were improper and thus, a COVID-19 nursing home wrongful death suit can proceed in Missouri state court.

In June 2020, the plaintiff, the son of a nursing home resident who contracted and died from COVID-19, brought suit in Missouri state court against the nursing home, its corporate owners, and twelve individual defendants. Plaintiff asserted Missouri causes of action for wrongful death, negligence per se, and lost chance of survival. While none of the corporate…
Continue Reading Eighth Circuit Court of Appeals Allows COVID-19 Case to Proceed in Missouri State Court

ABSTRACT: The Supreme Court reversed the standard for “undue hardship” under Title VII. What that means for employers and vaccine requirements.
In a Supreme Court term with many headline-grabbing decisions, the high court’s decision in Groff v. De Joy might be the most immediately consequential for employers. In Groff, the Supreme Court changed the prevailing standard for employers responding to employees’ religious accommodation requests under Title VII. By the plain language of the statute, it is unlawful for employers to deny a religious accommodation unless the accommodation would create an “undue hardship” for the employer. Thanks to language from…
Continue Reading Supreme Court Reverses Standard for "Undue Hardship" in Title VII Religious Accommodation Cases

ABSTRACT: In a recent opinion from the United States District Court for the Eastern District of Texas, the Court examined the Consumer Financial Protection Bureau’s Unfair, Deceptive, or Abusive Acts or Practices portion of its Supervision and Examination Manual.

The Consumer Financial Protection Bureau (CFPB) has found itself entangled in a complex legal dispute stemming from its March 2022 update to the Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) portion of its Supervision and Examination Manual. This blog post will provide an in-depth legal analysis of the situation and explore its broader implications for regulatory agencies and their authority.
Continue Reading Unraveling the CFPB’s UDAAP Update: Legal Analysis and Implications for Regulatory Authority

ABSTRACT: The Eighth Circuit Court of Appeals, applying Federal Rule 702 and Daubert, affirmed the U.S. District Court’s exclusion of a medical causation expert’s testimony, which claimed to apply differential diagnosis, but did so in a faulty manner.

Plaintiff Lancaster brought suit in the United States District Court for the District of Nebraska claiming that her husband’s lung cancer was caused by his exposure to diesel exhaust, silica and asbestos during his 33-year career with BNSF Railway Company (“BNSF”). BNSF moved for summary judgment arguing that Plaintiff’s experts failed to base their opinions on sufficient and admissible evidence to…
Continue Reading Medical Causation Opinion Excluded in Toxic Exposure FELA Case

ABSTRACT: EEOC publishes proposed regulations to implement the Pregnant Worker Fairness Act, which became effective on June 27, 2023.
The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. On August 11, 2023, the EEOC published its proposed regulations implementing the new law in the Federal Register. Public comments will be accepted through October 10, 2023. The EEOC has until December 29, 2023 to issue the final regulations. The regulations once finalized will provide detailed guidance from the agency on the scope of workers’ rights and the employers’ obligations under this new law.
We covered the basics…
Continue Reading EEOC Issues Proposed Regulations to Implement the Pregnant Workers Fairness Act

ABSTRACT: The Missouri Court of Appeals, Eastern District, ruled that a trial court’s decision to admit a biomechanical expert’s opinions on the specific cause of an infant’s injury during delivery was prejudicial error and remanded the case for a new trial.
In Huett v. Branson, the Missouri Court of Appeals for the Eastern District applied the expert witness statute, as amended in 2017, to exclude pivotal causation testimony offered by a defense expert in a medical malpractice case. The Court of Appeals determined the trial court’s decision to admit a biomechanical expert’s opinions on the specific cause of an infant’s…
Continue Reading Missouri Court of Appeals Rules that the Admission of Expert Testimony on the Specific Cause of an Infant's Injury During Delivery was Prejudicial Error

ABSTRACT: Johnson County employee fired for dishonesty and insubordination puts up a solid fight trying to support his burden that the County’s reasons for his termination were a pretext for discrimination based on disability and were in retaliation for his exercise of ADA and FMLA rights. In Rutledge v. Board of County Commissioners, the Tenth Circuit analyzes and ultimately rejects each of the employee’s numerous arguments, providing a great overview of the current law on the “pretext” burden.
In Rutledge v. Board of County Commissioners, the Tenth Circuit provides a great refresher on the various ways an employee…
Continue Reading Tenth Circuit Decision Provides Excellent Discussion of Burden to Show Pretext in Discrimination Cases

ABSTRACT: Lenders servicing loans related to Missouri properties should be on notice of the new statute governing force-placed insurance, in effect as of August 28, 2023.
Earlier this week, Mo. Rev. Stat. § 379.1850 went into effect. The new statute regulates lender-placed insurance with respect to mortgaged homes in Missouri. The statue does not apply to mortgage transactions involving extension of credit for business, commercial, or agricultural purposes, nor does it restrict the voluntary acceptance of lender-offered insurance or instances where the lender-placed insurance does not result in a charge to the mortgagor’s account.
The Act defines “lender-placed insurance” as insurance…
Continue Reading Lenders Beware: New Restrictions in Effect regarding Force-placed Insurance in Missouri

ABSTRACT: On July 18, 2023, the Seventh Circuit Court of Appeals upheld a District Court’s granting of summary judgment finding that negligent hiring claims against brokers are preempted. Now two Circuits (the Seventh and the Eleventh) find negligent hiring claims against brokers are barred by preemption. The Ninth Circuit found that these claims against brokers are not preempted. But has the tide turned?

The Seventh Circuit Court of Appeals affirmed a District Court’s judgment that the Federal Aviation Administration Authorization Act’s express preemption provision in 49 U.S.C. § 14501(c)(1) barred the plaintiff’s claim and that the Act’s safety exception in…
Continue Reading Brokers Take the Lead – Seventh Circuit Joins the Eleventh Circuit in Finding Preemption for Brokers

ABSTRACT: Injured while running from a scary clown at a haunted attraction? That’s unfortunate, but you assumed the risk.

Plaintiff Munoz attended Fright Fest, a Halloween oriented haunt event, at Six Flags wanting to be scared. While there, a “scary clown” jumped out at her, causing her to flee and ultimately injure herself. In a failed attempt to bring a lawsuit against Six Flags and the “unidentified” clown employee, the Court found that by going to an attraction where fear responses are likely to occur, the person seeking the thrill of fear assumes the risk.

Munoz attended Six Flags’ Fright…
Continue Reading No Laughing Matter…Assumption of the Risk Defense Upheld.

ABSTRACT: In a commercial motor carrier case alleging retaliation against a driver for reporting safety violations, a driver’s misconduct before an administrative law judge did not cause a delay that deprived the federal district court of jurisdiction, according to the Eighth Circuit.
Federal law prohibits employers from retaliating against commercial motor carrier drivers for reporting violations of federal safety regulations. An employee alleging retaliation may file a complaint with the U.S. Secretary of Labor. By law, if the Secretary of Labor does not issue a decision within 210 days after filing the complaint, the claimant may proceed directly to a U.S.
Continue Reading Driver's Bad Faith in Commercial Motor Carrier Retaliation Case Does Not Deprive Court of Subject Matter Jurisdiction, Eighth Circuit Finds