ALI-ABA

Litigating Employment Discrimination and Employment-Related Claims and Defenses in Federal and State Courts

Thursday-Saturday
May 3-5, 2007
Marriott Long Wharf Hotel
Boston, MA

Available Online: | Coursebook
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Why Attend?

Employment cases are an increasingly significant part of federal and state court dockets. Cases arising out of the employment relationship often raise claims under a variety of statutes and the common law, including the rapidly developing areas of Sarbanes-Oxley whistleblower law, wage and hour litigation under the FLSA and related state laws, ERISA, the FMLA, and federal and state anti-discrimination laws. Developments in this highly charged area of civil litigation challenge lawyers to respond quickly and effectively.

What You Will Learn

This annual advanced course of study, comprising more than 17 hours of instruction and including an hour of ethics, explores the claims and defenses often raised in employment cases, with emphasis on the litigation of those claims. The applicability of the newly enacted electronic discovery rules to individual employment cases also is discussed. The course also explores developments in the relatively new but rapidly burgeoning area of Family Responsibility Discrimination.

Leading plaintiffs' and defense counsel offer a balanced review of the leading issues and the most significant areas of controversy. Distinguished jurists provide commentary throughout.

The course includes concurrent plaintiff and defendant sessions that review the most practical and innovative means of resolving employment discrimination and civil rights cases, as well as successful techniques in handling pre-trial and trial proceedings before juries, courts, administrative bodies, and ADR representatives.

Time is reserved throughout the program to address written questions submitted by the registrants.

Planning Chairs

Kay H. Hodge , Stoneman, Chandler & Miller LLP, Boston

Debra S. Katz, Katz, Marshall & Banks, LLP, Washington, D.C.

Faculty

Judges

Bernice B. Donald, U.S. District Judge, Memphis

Gladys Kessler, U.S. District Judge, Washington, D.C.

William G. Young, U.S. District Judge, Boston

Litigators and Law Professors

Fred W. Alvarez,Wilson Sonsini Goodrich & Rosati, P.C., Palo Alto, California

Barbara B. Brown, Paul, Hastings, Janofsky & Walker, LLP, Washington, D.C.

Cynthia T. Calvert,Deputy Director and General Counsel, WorkLife Law, Ellicott City, Maryland

Joseph J. Centeno,Obermayer Rebmann Maxwell & Hippel LLP, Philadelphia

Stephen Z. Chertkof, Heller, Huron, Chertkof, Lerner, Simon & Salzman, PLLC, Washington, D.C.

Dennis P. Duffy, Baker Botts LLP, Houston

Michael D. Felsen, Counsel for ERISA, Office of the Solicitor, U.S. Department of Labor, Boston

Leon Friedman, Joseph Kushner Distinguished Professor, Hofstra University School of Law, Hempstead, New York

Katherine A. Hesse, Murphy, Hesse, Toomey & Lehane, LLP, Boston

Peggy Mastroianni, Associate Legal General, Equal Employment Opportunity Commission, Washington, D.C.

Marcellus A. McRae, Gibson, Dunn & Crutcher LLP, Los Angeles

Ellen J. Messing, Messing, Rudavsky & Weliky, P.C., Boston

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

Debra L. Raskin, Vladeck, Waldman, Elias & Engelhard, P.C., New York

Christine M. Roach, Roach & Carpenter, P.C., Boston

Eric Schnapper, Pendleton Miller Chair in Law, University of Washington School of Law, Seattle

Richard T. Seymour, The Law Office of Richard T. Seymour, P.L.L.C., Washington, D.C.

Joan C. Williams, Distinguished Professor of Law, University of California Hastings School of Law, San Francisco

Program Schedule

Thursday, May 3, 2007

7:45 a.m. Registration and Continental Breakfast
8:45 a.m. Introduction and Course Overview
Morning Session Commentator: Judge Kessler
9:00 a.m. Recent U.S. Supreme Court Rulings and High Profile Cases - Professor Schnapper
A review of the leading recent U.S. Supreme Court employment discrimination and civil rights decisions
9:45 a.m. Race, National Origin, and Religion: Recent Developments - Mss. Brown and Mastroianni and Mr. Chertkof
This panel reviews recent developments in these areas of the law, focusing attention on the unique intersection of issues and claims involving employees with Middle Eastern and Arab backgrounds and/or employees who are Muslim.
10:30 a.m. Networking Break
10:45 a.m.Emerging Family Responsibility Claims under the Family and Medical Leave Act and Sex Discrimination Laws - Ms. Calvert and Professor Williams
Claims raising issues based on family responsibility are being pursued successfully under both the Family and Medical Leave Act and sex discrimination statutes. What are these claims, and how can an employer avoid them? The panel discusses recent developments in the area of sexual stereotyping and maternal bias claims, and "best practices" in the workplace to prevent Family Responsibility Discrimination.
11:45 a.m. Disability and Age Claims: Recent Developments - Mr. Chertkof and Mss. Hodge and Mastroianni
The number of disability discrimination cases continues to rise as courts grapple with many unanswered ADA issues, such as the parameters of reasonable accommodation and undue hardship. As employees work longer and the retirement age increases each year, employers increasingly are called upon to handle requests for accommodation of medical conditions by their older workforce.This panel looks at the intersection between age and disability claims.
12:30 p.m. Lunch Break
Afternoon Session Commentator: Judge Young
1:45 p.m. Harassment in the Workplace - Mr. Centeno, Ms. Katz, and Professor Schnapper
Plaintiff and defense views of recent federal and state cases alleging harassment on the basis of gender, race, national origin, religion, age, and disability are provided. Panelists also discuss several high profile state harassment cases to illustrate trends and important differences in federal and state laws. Professor Schnapper, who litigated Ellerth and Faragher before the U.S. Supreme Court, discusses key developments in the areas of employer liability in the wake of these cases.
2:45 p.m. Networking Break
3:00 p.m. Recurring Evidentiary and Expert Issues in Employment Litigation - Mr. McRae and Ms. Messing
Motions in limine and other common evidentiary issues, including electronic evidence: preservation and discovery; Rule 35 mental exams and related issues; the difference between statistical evidence and numbers; sexual conduct (Rules 412-415); plaintiffs litigation history; admission of EEOC determinations; discrimination against other employees ("me, too" evidence); stray remarks; comparator evidence
4:00 p.m. Deposing, Cross-Examining, and Impeaching the Plaintiff, the Alleged Discriminating Official, "Similarly Situated" Comparators, and Rule 30(b)(6) Witnesses - Messrs. Chertkof and McRae
Employment discrimination and employment-related claims often are won or lost as a result of depositions taken during discovery or on cross-examination at trial. What are the most effective techniques for questioning plaintiffs, alleged discriminating officials, and corporate designees? This panel discusses and demonstrates successful strategy and tactical considerations for deposing and questioning these witnesses, and what practices should be avoided.
5:00 p.m. Adjournment for the Day

Friday, May 4, 2007

8:30 a.m. Continental Breakfast
Morning Session Commentator: Judge Young
9:00 a.m. Compensation Rights and Responsibilities: Fair Labor Standards Act (FLSA) Litigation - Ms. Hodge and Mr. Seymour
A guide to understanding the requirements of the FLSA, including the new DOL regulations, and applying them to avoid litigation; emerging issues and developments. The panel discusses the proliferation of collective and class-action claims for wage and hour violations and employer defenses to these actions.
10:00 a.m. Networking Break
10:15 a.m. ERISA Discrimination for the Employment Law Practitioner - Mr. Felsen and Ms. Hesse
The panel presents an overview and discusses recent developments in ERISA discrimination litigation, including what claims are cognizable under ERISA 510, statute of limitations issues, appropriate parties, and available remedies.
11:15 a.m. Whistleblowing, Sarbanes-Oxley, and Retaliation Claims - Mr. Alvarez and Ms. Katz
There has been an exponential rise in the number of retaliation cases brought as either add-on or stand alone claims. This panel explores legal developments in these areas, including retaliation claims post-Burlington Northern and key developments under Sarbanes-Oxley. Developments regarding "adverse actions," protected activity, and causation are discussed.
12:15 p.m. Lunch Break
Afternoon Session Commentator: Judge Young
1:30 p.m. Summary Judgment in Employment Cases: When and Why? - Mr. Alvarez and Ms. Raskin
Standards for seeking and defeating summary judgment in light of Reeves v. Sanderson Plumbing Products, Desert Palace, and their progeny; practical lessons drawn from trial practice What works? What doesn't? Why?
2:30 p.m. Networking Break
Afternoon Session Commentator: Judge Kessler
2:45 p.m. Class Action Practice and Procedures - Ms. Brown and Mr. Seymour
Changes in class action practice and procedure resulting from the Class Action Fairness Act of 2005; implications for the future of class actions in employment cases; effect that Rule 23(f) has had in shaping the law on class certification, and a quick survey of recent trends in certification decisions
4:15 p.m. Public Employee Litigation under Sections 1981, 1983, and 1985 - Professor Friedman and Ms. Roach
5:15 p.m. Adjournment for the Day

Saturday, May 5, 2007

8:00 a.m. Continental Breakfast
Morning Session Commentator: Judge Donald
8:30 a.m. Practical and Tactical Employment Litigation Issues - Mss. Katz and Roach and Mr. Panken
This panel explores a variety of issues that arise in employment litigation, including mandatory arbitration issues, Rule 68 Offers of Judgment, attorneys fee litigation, and choosing the correct forum.
9:30 a.m. Ethical Issues in Employment Litigation - Mr. Duffy and Ms. Messing
10:30 a.m. Networking Break
10:45 a.m.Employment Tort Claims - Messrs. McRae and Seymour
The annual roundup of evolving common law tort claims
11:30 a.m. Settlements: Getting an Agreement - Mr. Panken and Ms. Raskin
Plaintiff and defense views on resolving non-monetary issues, which cause most of the headaches in resolving discrimination and civil rights cases
12:15 p.m. Concurrent Plaintiff and Defendant Clinical Sessions
During these sessions, practitioners discuss matters of interest to registrants. The groups break out as follows:
Plaintiffs Trial Counsel Practice - Mss. Messing and Raskin and Mr. Seymour
Defendants Trial Counsel Practice - Ms. Hodge and Messrs. McRae and Panken
1:00 p.m. Adjournment

Total 60-minute hours of instruction: 17.25, including one hour of ethics

Suggested Prerequisite: Limited experience in legal practice in subject matter or completion of Basic CLE Course in subject matter

Educational Objective: Maintenance of professional competence as a practitioner; provision of information on recent legal developments; development of proficiency in performance of intricate and complex legal tasks within a narrow area

Level of Instruction: Advanced

Here's what registrants have said about this course:

Excellent overview of current trends in employment law. The information provided was most helpful insofar as providing a broad overview of the areas. The speakers were topnotch. The materials were outstanding and incredibly useful.

This program was truly exceptional. All of the presenters went beyond completeness in their presentations and written materials. I was really impressed and plan to attend again, if possible.

Terrific faculty. Terrific materials.

Once again, I was impressed by the caliber of the faculty and the quality of the materials provided. Im sure they will be a useful reference. I also learned some new information that informs on some very specific issues I am working on in my cases. Great program!

Well planned and very effective course. The materials were excellent and very up-to-date. They contain a good overview of applicable case law under the various federal equal employment statutes.

I have been to many ALI-ABA seminars and expect the highest quality. I was not disappointed.

I believe this was the best course I have attended.