Employment Discrimination Litigation

Monday, July 30 to Tuesday, July 31, 2012

New York Downtown Marriott, New York, NY

MAIN CONFERENCE DAY ONE - Monday, July 30, 2012

9:10 Co-Chairs’ Welcome Remarks (registration for main conference begins at 8:30 a.m.)

9:15 Management Side Think Tank: In-House Corporate and Insurer Panels on Containing Costs and Optimizing Internal Policies, Practices, and Documentation to Set Up, Control and Strengthen the Defense if Litigation Arises

Panel 1 | 9:15 - 10:10

Lindsay P. Thompson
Senior Employment Litigation Counsel
Family Dollar Stores, Inc.

Jason Brown
VP & Senior Counsel
American Express Company

Ron Peppe
Vice President Legal & Human Resources
Canam Steel Corporation

Philip I. Weis
Director & Senior Employment Counsel
Boehringer Ingelheim Pharmaceuticals, Inc.

Hilary L. Kelly
Senior Counsel, Employment & Litigation
Daiichi Sankyo, Inc.E.

Jane Hix
Senior Legal Counsel, Office of GC
Thomas Jefferson University Hospitals, Inc.

Arturo J. Fernandez
Assistant Gen. Counsel, Labor & Employment
Ryder System, Inc.

Panel 2 | 10:10 - 11:05 (break 11:05-11:10)

Andrew H. Smith
Director, Associate General Counsel
Citigroup

Dori Anne Kuchinsky, Esq., CIPP
Senior Litigation & Global Privacy Counsel
W.R. Grace & Co.

Neal A Murphy
Counsel
Aetna

Wanda Morris
Counsel, Employment & Labor Law
Home Depot

Christine Greener Uhlig
Senior Attorney, Legal Department
The Northern Trust Company

Ed Berrios, Esq.
Assistant Vice President
Chubb & Son

Alexander Barnard
Director & Counsel
Credit Suisse Securities LLC

Panel 3 | 11:10 - 12:05

John W. Hamlin, Esq.
Chief Employment Counsel
Marsh & McLennan Companies, Inc.

Stephen J. Calvert
Assistant General Counsel
CenterPoint Energy

Jason A. Fogg, Esq.
VP, Claims & Regulatory Compliance
Monitor Liability Managers, LLC

David J. A. Hayes III
Vice-President & General Counsel
Trans States Holdings, Inc.

Edward T. McNally II, Esq.
National EPL Practice Leader
CNA Open Brokerage

Jennifer J. Hamilton, Esq.
Senior Claims Analyst
Allied World National Assurance Company

Amy Elizabeth Loggins
AVP - Corporate Counsel
Crawford & Company

Moderator of all 3 panels:
Eric W. Iskra,
Spilman Thomas & Battle, PLLC

• The Paper Trail and Documentation
• Avoiding Unfavorable Facts in Litigation: Policies, Practices & Consistent Application of Policy/Practice
• Cost of Defending Cases and Attorney Fees Fee Shifting
• Preservation and Production of ESI and E-Discovery Considerations
• Utilizing statistical analysis on a routine basis to monitor employment practices for disparate impact claims; maintaining data to defend against such claims on a cost effective basis
• Early case assessment and valuing the case, getting the insurer’s consent to settle, and ensuring that substantial sums are not needlessly spent defending cases that are unwinnable or can be used to achieve an optimal settlement earlier in the case

12:05 EPLI Coverage in the Discrimination Context: Difficulties in Dealing With Coverage, New Exposures, and Claims Trends

Miles R. Afsharnik
Senior Vice President, Claim & Legal Resource Director,
Professional Risk Group
Wells Fargo Insurance Services USA, Inc.

Raymond Cashman
Senior Claims Manager
Freedom Specialty a Nationwide Company

Gregory Staron
Claims Manager
Beazley Group

Joni F. Mason
Senior Vice President,
EPL Product Manager
Chartis

Brian Weiss, Esq.
Vice President, FINEX
Willis North America

Daniel Aronowitz
Managing Principal
Euclid Specialty Managers

Moderator:
Julie Dean
Larsen Kutak Rock LLP

• What new coverage enhancements are being offered?
• New sources of claims
• Claims trends: Types of claims; Industries with the most claims; Payouts and defense costs
• Carrier perspectives on working with insureds to better manage claims
  • notice of a claim to a carrier
  • ensuring that carriers are notified of claims in a timely manner
  • determining when carrier consent is required and whether such consent has been given
  • determining if and when a carrier should be notified of a potential claim
• Dealing with situations where coverage appears to be insufficient

1:00 Networking Lunch for Speakers and Delegates

2:00 Preparing for Expanded Regulatory, Legislative and Enforcement Efforts in the Employment Discrimination and Retaliation Realm

Patricia A. Shiu (invited)
Director of the Office of Federal Contract Compliance Programs
U.S. Department of Labor

Seema Nanda
Acting Deputy Special Counsel
Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)
U.S. Department of Justice

Elizabeth Grossman
Regional AttorneyNew York District Office
Equal Employment Opportunity Commission

Dawn C. Valdivia
Diana L. Hoover
Quarles & Brady LLP Hoover Kernell LLP

• EEOC
  • Trends in EEOC charges and lawsuits
  • EEOC priorities
  • Systemic investigations and litigation
  • Subpoenas and requests for information and documents during the investigative process
  • EEOC litigation program
  • Representing clients in EEOC settlement and conciliations
• NLRB’s recent interpretations of discrimination and retaliation claims
  • Protecting rights of undocumented workers who complain of unfair labor practices
  • Opposing employer moves to retaliate against workers for exercising right to strike
  • Challenging waivers of class actions in arbitration
• Emerging areas of focus and enforcement efforts for the DOL and the DOL OFCCP
• Disability Affirmative Action Rule
• DOJ-OSC enforcement trends
  • rise in civil penalties
  • how DOJ-OSC relates to DHS-ICE Worksite Enforcement efforts
  • emerging areas of focus, including pattern and practice cases, discriminatory advertisements, and discriminatory use of E-Verify
  • subpoenas and requests for I-9s and other documents during an investigation
• Managing the increased government activity in and scrutiny of discrimination and retaliation issues
• Preparing for comprehensive federal and state agencies as coordination efforts improve among and across federal and state agencies
• Targeted investigations: Which industries are attracting increased scrutiny by the regulators and why?
• Enforcement trends: Frequency and types of claims being brought

3:00 Disability and Leaves of Absence: Defending Against FMLA and ADA Claims (Including Mental Health Claims) and Making Sense of the Crossover Between

Dianne C. Coombs
Northrop Grumman

Terence P. McCourt
Greenberg Traurig, LLP

Martha S. Doty
Alston & Bird LLP

Kay Hodge
Stoneman, Chandler & Miller LLP

ADA Reasonable Accommodation, and the Duty to Document and Engage in the Interactive Process

• Understanding the recent amendments to the ADA and accompanying regulations
• Determining whether or not an employee has a disability at all, is covered by ADA, and if the employer has any duty to provide the employee with a reasonable accommodation
• What is a “disability” and what is a “reasonable accommodation”; claims of failure to reasonably accommodate a disability; proving that an employer reasonably accommodated a disabled employee
• What does it mean to engage in the interactive process required by the ADA?
• Overcoming difficulty in assessing disability discrimination claims from standpoint of (a) likelihood of obtaining summary judgment (b) assessing likely damages and (c) natural sympathy factor for someone with a disability
• Trend in California and elsewhere of turning single plaintiff cases into “pattern and practice” cases and seeking punitive damages

Emotional and Mental Health ADA Claims

• Managing ADA claims based on emotional and mental health issues
• Accommodating mental disabilities and other “tricky to identify and accommodate” disabilities

FMLA, Leave of Absence Laws and Related Claims (including Leave Retaliation Provisions), and Employer Leave Policies

• FMLA: the complexity and subtle nuances of its regulations
• The continuing rise of FMLA claims and the governments increasing role in these

FMLA Discrimination/Retaliation claims

• Implementing the differences in FMLA, ADA and other leave requirements, particularly with the expansion of what constitutes a disability and what constitutes an appropriate accommodation
• Proving that an illness is not a serious health condition
• The level of sophistication needed for companies to handle FMLA cases correctly from the start
• Dealing with and defending FMLA intermittent leave claims
• How to handle the case of strategic use of disability leaves to foil the employer’s intent to discipline or terminate the employee for performance reasons

ADA/FMLA Interplay and “The Bermuda Triangle” – ADA, FMLA, Workers’ Comp and Beyond

• The intersection of ADA/FMLA (and all other types of leaves) post-ADAA amendments
• Interplay between FMLA and ADA – especially in the leave of absence context
• Defending cases involving crossover of ADA and FMLA and the interplay between the expanded ADAAA and the revised FMLA regulations
• Litigating leave management issues under the FMLA/ADA, particularly additional (beyond FMLA) leave as an ADA reasonable accommodation
• Successfully navigating the maze created by the ADA, FMLA and worker’s compensation laws
• Defending against claims involving employees who have some disability or work restriction involving the intersection and/or conflict of two or more of the following laws: ADA, FMLA, Workers’ Comp, Social Security disability, ERISA, and unemployment claims

4:00 Afternoon Break

4:05 Class Actions: How to Advise Your Clients Given the Uncertainty of Class Action Law and Waivers post-Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and the NLRB Decision in DR Horton

Paul F. White, Ph.D.
Managing Director
ERS Group

Jay W. Waks
Kaye Scholer LLP

Steven W. Suflas
Ballard Spahr LLP

Elise M. Bloom
Proskauer Rose LLP

Lynne C. Hermle
Orrick, Herrington & Sutcliffe LLP

Class Actions post-Wal-Mart v. Dukes

• What types of EEO lawsuits can proceed on a class basis now?
• Reversals of prior certifications in the wake of Dukes
• Applicability of Dukes to discrimination and retaliation cases
• How the lower courts are applying Dukes to discrimination and retaliation cases
• The evolving standards of certification in discrimination and retaliation cases
• Issuing notice – how the courts are treating notice; published notice; using third-party administrators
• Factors that the courts are using to determine certification of a Rule 23 class in discrimination and retaliation context
• Best practices for using Dukes to your client’s advantage in the discrimination and retaliation cases context; Pitfalls to avoid
• Strongest arguments against certification
• What’s now supportable by statistical analysis; the latest on statistic defenses once a class is certified – and how the statistics can be manipulated
• Strategies for narrowing a class
• Using expert testimony and data to make a direct challenge to a class certification post Dukes: Showing that the class representatives are not typical of the purported class; Showing a lack of commonality amongst the issues

Class Action Waivers post-AT&T Mobility v. Concepcion, and the NLRB Decision in DR Horton

• NLRB decision in D.R. Horton and the Supreme Court’s case AT & T Mobility v. Concepcion on class action waivers – The conflict and what should employers do now?
• How the lower courts are applying AT&T Mobility and D.R. Horton to federal statutory rights cases
• What are the lessons of the American Express Merchants Litigation on the enforcement of class action waivers in arbitration and in the courts?
• Ensuring proper drafting of arbitration clauses and class action waivers in employment agreements
• Implementing an arbitration agreement while litigation is pending
• Revising employment agreement arbitration clauses written prior to AT&T Mobility
• Seeking dismissal of class actions certified prior to AT&T Mobility in cases in which an arbitration agreement included a class action waiver
• Overcoming new and emerging theories from plaintiffs’ attorneys as to why AT&T Mobility does not apply in a particular case
• Assessing the long-term impact of AT&T Mobility on retaliation and discrimination cases: How successful will defense counsel and the plaintiffs’ bar be in expanding or contracting the application of AT&T Mobility’s holding?
• State nuances and other potential exceptions to AT&T Mobility: How the plaintiffs’ bar is using these exceptions
• Arbitrating class and collective actions when a class action waiver is absent or found to be unenforceable: Best practices for the defense
• Choice of forum – Arbitration vs. Court? Tactics and Strategies
• The status of the D.R. Horton appeal

5:10 Defending Against Pregnancy Discrimination Claims: Overcoming the Unique Challenges Employers Face

Aimee B. Florin
Director and Associate General Counsel
Citi | Office of the General Counsel

Allan Bloom
Paul Hastings LLP

Marina Tsatalis
Wilson Sonsini Goodrich & Rosati

Paul G. Klockenbrink
Gentry Locke Rakes & Moore LLP

• Managing leaves of absence issues in the pregnancy context
• Pregnancy as a disability, including in cases where the mother and/or infant require extended medical care
• Proving that pregnancy wasn’t the reason for the adverse decision
• Child care issues under Title VII
• Reasonable accommodations and the pregnant employee

6:15 Conference Adjourns

Day Two – Tuesday, July 31, 2012

7:30 Continental Breakfast

8:00 View From the Bench: Judges Speak Out on How to Convey Complexities to a Court (including Parameters of and Changes to the Law), Effective Plaintiff Theories/Defenses, Evidentiary Approaches, Statute of Limitations, Deciding Cases Early, Discovery, Forum Shopping and More

Hon. Donetta W. Ambrose
U.S. Dist. Ct., W.D. Pa.

Hon. Lloyd D. George
U.S. Dist. Ct., D. Nev.

Hon. Ann D. Montgomery
U.S. Dist. Ct., D. Minn.

Hon. Bernard Zimmerman
U.S. Dist. Ct., N.D. Calif.

Hon. James C. Francis, IV
U.S. Dist. Ct., S.D.N.Y.

Hon. Mildred E. Methvin
U.S. Dist. Ct., M.D. Pa. (recall)

Hon. B. Waugh Crigler
U.S. Dist. Ct., W.D. W. Va.

Hon. Arthur J. Boylan
U.S. Dist. Ct., D. Minn.

Hon. Anthony J. Mohr
Calif. Super. Ct., Los Angeles Co.

Moderator:
Hon. Louisa S. Porter
U.S. Dist. Ct., S.D. Calif. (retired)

9:40 Morning Coffee Break

9:45 The Judicial and Legislative Expansion of Retaliation Claims Brought by Current and Former Employees: Getting These High-Exposure Claims Dismissed Via Dispositive Motion and/or Minimizing Their Jury Appeal

Charles A. Edwards
Womble Carlyle Sandridge & Rice, LLP

Ricki E. Roer
Wilson Elser Moskowitz Edelman & Dicker LLP

Hayes Ryan
Gordon & Rees LLP

Margaret R. T. Myers
Adams and Reese LLP

New Jurisprudence

• The Supreme Court’s focus on expanding protection from retaliation
• Overcoming the inherent difficulty in defending retaliation claims when the termination is close in time to the complaint
• Newest trends in the expansion of retaliation claims: what constitutes protected activity and/or adverse action?
• Overcoming the difficulties in defending retaliation claims because of the law and the nexus/causal connection issues to protected activity
• Keeping what might be an easy to address discrimination claim from becoming a difficult retaliation claim
• Retaliation accompanying a discrimination claim: Defending against a remaining retaliation claim when the underlying discrimination or harassment claim is found to be without merit or specious
• Overcoming the problematic fact of temporal proximity between a complaint or EEOC charge and a subsequent adverse action or termination
• Preventing retaliation claims: what the jury will want to see before you terminate a problem employee
• Jury appeal of retaliation claims: Voir Dire on retaliation claims and how to overcome juror preconceived notions that it is natural to want to retaliate when someone has made allegations against you – even if they were unfounded
• Dealing with and defending retaliation claims that were filed solely to protect an otherwise poor performer or when the plaintiff has a demonstrable history of prior complaints

Unique Issues for Non-Termination Related Retaliation Claims

• Dealing with employees who have made a claim and still work for the company
• Managing the employee who brings a claim while still employed by your client
• Risk of claims by plaintiffs who are current employees
• Defending retaliation claims brought by current (rather than former) employees

10:45 The Intersection of Employment Retaliation Law and Law Enforcement: Whistleblower, SOX, Dodd-Frank and Beyond

James Gillece, Jr.
Whiteford Taylor Preston

Jason C. Schwartz
Gibson, Dunn & Crutcher

Susan M. DiMickele
Squire Sanders (US) LLP

• The usage of whistleblower claims as precursors to retaliation claims, including state law related retaliation claims dealing with “whistle blower” issues
• “Whistleblower” claims (employees complaining about minor items and later claiming they were terminated for being a whistleblower)
• Examining anti-arbitration provisions in whistleblower laws
• Dodd-Frank and SOX defense after the Halliburton case (low bar for protected conduct)
• Anti-retaliation provisions of SOX, Dodd-Frank and the False Claims Act – interaction of these laws and a company’s internal investigation
• The line between protected “whistleblowing” and unprotected breaches of confidentiality
• Fourth Amendment implications of an employee cooperating with the government, the interaction between
• Privilege issues

11:30 Labor Economics Versus Purely Statistical Approaches to Study Class Action Discrimination Claims

Ali Saad, Ph.D.
Managing Partner
Resolution Economics LLC

Michael S. Burkhardt
Morgan, Lewis & Bockius LLP

David B. Ross
Seyfarth Shaw LLP

Allan G. King
Littler Mendelson

• You have a shovel, now where do you dig?
• Legal standards for statistical evidence – historical review
• The importance of benchmarks
• The pure statistical approach to constructing benchmarks
• The Labor Economics approach to constructing benchmarks
• The labor economist’s approach: Age, Gender, & Race
• Presenting labor economics approaches to finders of fact

12:45 Networking Lunch for Speakers and Delegates

1:45 Given Our Aging Jury Population, How Do You Counter Age Discrimination Claims Brought by Employees Over 50 Years of Age?

Wayne O. Adams III
Ice Miller LLP

Peter M. Panken
Epstein Becker & Green, P.C.

John M. Husband
Holland & Hart LLP

Arlene K. Kline
Akerman Senterfitt LLP

• The sympathy factor: Overcoming the problem of juror sympathy for older workers because their parents or contemporaries are potential victims
• Planning for and dealing with age statistics in reductions in force
• Determining whether replacement with a lesser cost employee is a defense to an age discrimination charge
• The number of age discrimination charges (under the ADEA) brought before the EEOC have grown significantly in recent years relative to other discrimination claims – what are the preventive employment practices that should be practiced with this key trend in mind?
• Disposing of “pretext” arguments
• Defending against disparate impact claims, given that the standard “reasonable factor other than age” laid down by the Supreme Court has not been well defined in case law or regulations
• Clarifying ambiguities relating to mandatory retirement policies
• Assessing the impact of the gross “but for” standard on intentional discrimination claims

2:40 Conducting Reductions in Force That Avoid Discrimination Claims and Defending Discrimination Cases That Arise Out of RIFs

Drema M. Kalajian
Attorney
Ally Financial Legal Staff

C. David Morrison
Steptoe & Johnson PLLC

• RIF: How it’s handled and documented; conducting RIFs in an appropriate & thought-out manner
• RIFs which are properly documented in terms of business need and employee selections
• RIF Reasonable efforts to ensure nondiscrimination, including analysis to avoid disparate impact
• Reductions in force when an analysis of the potential impact on protected classes suggests a problem
• Defending discrimination cases arising out of reductions in force, especially given difficulties of making sure one gets valid releases and the increasingly hostile job market
• Determining severance and retention plans
• Publishing a layoff policy in advance of the need
• Considering alternatives to layoffs (wages, freezes, hiring freezes, etc.)
• Bringing out legit selection criteria (such as high salary or weaker skills) in your defense
• How are RIF claims currently moving through the EEOC process?
• Overcoming the complexity of RIF cases and the various case law strains that can apply
• Examining the post-RIF processes
• Defending RIF-Related Claims: Interpreting the WARN Act, ADEA Issues, Collective Bargaining Agreement Considerations, and Voluntary Exit Incentive Fraud Claims

3:20 Afternoon Break

3:25 Disparate Impact Claims Based on Background and Credit Checks and Criminal History

Stuart R. Buttrick
Faegre Baker Daniels LLP

Jonathan W. Yarbrough
Constangy, Brooks & Smith, LLP

Lawrence Peikes
Wiggin and Dana LLP

• Challenges under Title VII or state law to employers basing employee decisions off of criminal or credit history checks
• Disparate impact claims based on criminal history and credit checks
• EEOC litigation initiatives such as background checks
• Criminal history or credit background checks as disparate impact discrimination
• Examining the employer’s obligations under the Fair Credit Reporting Act when using third parties to conduct background checks

4:15 Special Issues in Gender Discrimination and Defending Against Pay and Compensation Discrimination Suits

Christopher G. Gegwich
Nixon Peabody LLP

Grace E. Speights
Morgan, Lewis & Bockius LLP

Mark J. Neuberger
Foley & Lardner LLP

Richard W. Warren
Miller Canfield P.L.C.

Pay Equity

• Pay equity and “the Equal Pay App Challenge”
• Multi-plaintiff or class actions: Countering the ease of the plaintiffs in demonstrating membership in the protected class
• The defense of compensation discrimination claims, including claims alleging a discriminatory decision occurred during a period for which records are no longer available
• Developing defendant’s evidence in a compensation discrimination claim
• Statute of limitations for compensation discrimination claims

Gender

• Defense strategies given the overly aggressive stance of the plaintiffs’ bar, post Dukes and Novartis, on gender discrimination claims

5:15 The Rise in Sexual Harassment (Including Violent Harassment) and Reverse Sexual Harassment Claims: Minimizing Conduct or Showing That It Had No Effect on the Plaintiff

Vincent A. Cino
Jackson Lewis LLP

John L. Barber
Lewis Brisbois Bisgaard & Smith LLP

• Examining the most recent important sexual harassment cases and any recent developments
• Determining whether using a psychiatric/psychological expert validates the discussion or undermines the Plaintiff
• What conduct is now “severe or pervasive” in the eyes of your jury (vs. a jury in some other city or state)• Hostile work environment: recent changes that make it more difficult for employers to defend against them, at least at the summary judgment stage
• How to counter claims by employees who feel that “displeased” is harassment
• Sexual harassment claims where the relationship was apparently consensual at the beginning but then changed
• Defending against claims when a key executive is the alleged perpetrator or there are allegations of physical abuse
• If you have operations in NY, factoring in NY City Human Rights law’s treatment of harassment claims – the statute no longer recognizes the Farragher/Ellerth affirmative defense and has a lower standard for the establishment of harassment (i.e., the plaintiff was treated “less well” rather than subject to “severe and pervasive” harassment).

6:00 Main Conference End

 

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Location:
New York Downtown Marriott
New York, NY