EMPLOYMENT DISCRIMINATION LITIGATION - Alston & Bird LLP

American Conference Institute’s 2nd National Forum on Defending and Managing 

A unique opportunity to hear how 

judges interpret evidence and 

arguments in the employment 

discrimination context 

Hear From: 

Hon. Mark W. Bennett 

U.S. Dist. Ct., N.D. Iowa 

Hon. James L. Robart 

U.S. Dist. Ct., W.D. Wash. 

Hon. Eric F. Melgren 

U.S. Dist. Ct., D. Kan. 

Hon. Susan Segal 

U.S. Dist. Ct., C.D. Calif. 

Hon. Lisa P. Lenihan 

U.S. Dist. Ct., W.D. Pa. 

Hon. James P. O’Hara 

U.S. Dist. Ct., D. Kan. 

Expert defense strategies for leading outside counsel and in-house counsel 

on litigating today’s key issues involved in representing management 

Hon. Louisa S. Porter 

U.S. Dist. Ct., S.D. Calif. 

Hon. Robert Collings 

U.S. Dist. Ct., D. Mass. 

Enhance your experience with the 

Pre-Conference International Workshop: 

The Cross-Border Employment 

Agreements Swap: An Unparalleled 

Benchmarking Opportunity 

Tuesday, December 7, 2010 

2:00 – 5:00 p.m. 

Plus, register for the Post-Conference 

Boot Camp: 

ERISA Boot Camp for Labor 

& Employment Attorneys 

Thursday, December 9, 2010 

3:30 – 6:00 p.m. 

EMPLOYMENT 

DISCRIMINATION 

LITIGATION 

December 8-9, 2010 | Sheraton Fisherman’s Wharf | San Francisco 

Leading outside counsel (including the former Vice Chair of the EEOC and the former 

Head of the Office of Legal Counsel at the EEOC), in-house professionals and renowned 

jurists will provide you with up-to-the minute practical information on: 

» Retaliation Claims: 

why claims are getting higher exposure than ever before 

and how to work toward dismissal 

» The rise of age discrimination claims in the new economy as a result of 

individual adverse actions and in the context of reductions in force 

» Federal and state regulation and enforcement activity affecting the employment 

discrimination landscape 

Register Now • 888-224-2480 • AmericanConference.com/Discrimination 

Earn 

CLE 

Credits 

» Special issues in gender/sex discrimination: 

Defending against pay and compensation 

discrimination suits and the latest sexual orientation/gender identity claims 

» Key procedural strategies for winning employment discrimination cases: 

spotlight 

on removal, motion practice and summary judgment 

» The rise of civil rights class actions: Dukes v. Wal-Mart & its rippling effect 

» Mediation and arbitration of discrimination claims: 

Strategies and techniques for engaging 

in successful alternative dispute resolution 

» Disability discrimination and sexual harassment claims: 

How to prepare your company 

and your clients to implement proper policies and defend against the fastest growing claims 

» Optimizing internal policies, practices, and documentation to set up, control and strengthen 

the defense if litigation arises 

Faculty includes the following experienced in-house counsel: 

David J. A. Hayes III 

Vice President & General Counsel 

Trans States Holdings, Inc. 

Jane Howard-Martin 

Assistant General Counsel 

Labor & Employment 

Toyota Motor Sales, U.S.A. 

Andrew Fisher 

Director – Legal Affairs 

T-Mobile USA, Inc. 

Sponsored by: 

Monique Gibson 

Attorney 

Bell Helicopter 

Steven H. Taylor 

Vice President 

Regulatory, Labor and Employment 

FedEx Express 

Sue Lanergan, Esq. 

Senior Associate General Counsel 

WellPoint, Inc. 

Media Partners: 

Rachel L. Barack 

Sr. Corporate Counsel 

The Clorox Company 

Lucia Padilla 

Senior Attorney 

Employment and Labor Law Group 

Qwest Corporation

The premier employment discrimination litigation conference 

devoted entirely to the defense of claims, led by an unparalleled 

faculty of in-house counsel, federal judges, and the top outside 

counsel defense litigators and firms. 

The volume of employment discrimination litigation has greatly increased over the last 

few years with no signs of slowing down. The cases are complex and the stakes involved 

for defendants are exceptionally high. The best plaintiff attorneys are involved in these 

cases and the defense bar is seeing more and more class actions and collective claims. In 

defending and managing these complex claims, counsel for management face a distinct 

uphill battle. As a result of this uphill battle, there is simply no room for error in the 

defense of these claims. 

In response, American Conference Institute’s 2nd National Forum on Defending and 

Managing Employment Discrimination Litigation will cover such issues including: 

• Overly-aggressive tactics and even abusive practices by opposing counsel that 

have made the defense of cases significantly more expensive, adding exposure 

to employers 

• Credibility of company and management witnesses in front of the jury, and 

turnover in the workplace leading to key witnesses or decision makers being 

no longer with the employer 

• Jury communication and advocacy in employment discrimination cases: 

Humanizing the employer, and overcoming sympathy for plaintiffs and bias 

against companies 

• Varying extremes in jurisdictions (e.g. federal or state, liberal or conservative state) 

• Admissibility of evidence: Ensuring that evidence doesn’t overwhelm the defense’s 

case on the merits –“Me too,” discriminatory motive, mixed motive, witness 

credibility and turnover, and beyond… 

• A View from the Bench: Judges speak out on how to convey complexities to a 

court (including parameters of and changes to the law), effective theories/defenses, 

evidentiary approaches, statute of limitations, deciding cases early, discovery, forum 

shopping and more… 

Don’t miss the nation’s essential advanced defense forum that will shape the future of 

employment discrimination strategies for leading litigators and in-house counsel. Through 

a distinguished faculty of leading in-house counsel, the top outside defense counsel, as 

well as renowned jurists, this conference will provide even the most seasoned litigators 

with clarity and certainty with respect to today’s key issues crucial to mounting a rigorous 

and complete defense. 

And enhance your experience with the workshops: 

A. The Cross-Border Employment Agreements Swap: An Unparalleled 

Benchmarking Opportunity 

Tuesday, December 7, 2010; 2:00 – 5:00 P.M. 

B. ERISA Boot Camp for Labor & Employment Attorneys 

Thursday, December 9, 2010, 3:30-6:00 P.M. 

Register now by calling 888-224-2480, faxing your registration form to 877-927-1563 

or registering online at: www.AmericanConference.com/Discrimination 

Who You Will Meet: 

In-House Counsel, including: 

• General Counsel 

• Chief Employment Counsel 

• Labor and Employment Counsel 

• Employment Litigation Counsel 

Outside counsel practicing in the areas of: 

• Labor and Employment Law 

• Employment Discrimination 

• Class Actions 

Global Sponsorship Opportunities 

With more than 500 conferences in the United States, 

Europe, Asia Pacific, and Latin America, American 

Conference Institute (ACI) provides a diverse portfolio 

devoted to providing business intelligence to senior decision 

makers who need to respond to challenges spanning various 

industries in the US and around the world. 

As a member of our sponsorship faculty, your organization 

will be deemed as a partner. We will work closely with your 

organization to create the perfect business development 

solution catered exclusively to the needs of your practice 

group, business line or corporation. 

For more information about this program or our global 

portfolio of events, please contact: 

Wendy Tyler 

Head of Sales, American Conference Institute 

Tel: 212-352-3220 x242 | Fax: 212-220-4281 

w.tyler@americanconference.com 

Continuing Legal Education Credits 

CLE 

Credits 

Accreditation will be sought in those 

jurisdictions requested by the registrants which 

have continuing education requirements. This 

course is identified as nontransitional for the 

purposes of CLE accreditation. 

ACI certifies that the activity has been approved for CLE 

credit by the New York State Continuing Legal Education 

Board in the amount of 14.0 hours. An additional 3.5 

credit hours will apply to workshop A participation and 

3.0 credit hours will apply to workshop B participation. 

ACI certifies that this activity has been approved for CLE 

credit by the State Bar of California in the amount of 

12.0 hours. An additional 3.0 credit hours will apply to 

workshop A participation and 2.5 credit hours will apply 

to workshop B participation. 

You are required to bring your state bar number 

to complete the appropriate state forms during the 

conference. CLE credits are processed in 4-8 weeks after 

a conference is held. 

ACI has a dedicated team which processes requests for state 

approval. Please note that event accreditation varies by state 

and ACI will make every effort to process your request. 

Questions about CLE credits for your state? Visit our online 

CLE Help Center at www.americanconference.com/CLE 

Register now: 888-224-2480 • fax: 877-927-1563 • AmericanConference.com/Discrimination

DAY ONE: Wednesday, December 8, 2010 

7:30 Registration and Continental Breakfast 

8:15 Co-Chairs’ Welcoming Remarks 

Martha S. Doty 

Counsel 

Alston & Bird LLP 

Julie A. Vogelzang 

Partner 

Duane Morris LLP 

8:30 In-House Management Think Tank on Containing 

Costs (Including ESI/E-Discovery Burdens and 

Attorney Fees) and Optimizing Internal Policies, 

Practices, and Documentation to Set Up, Control 

and Strengthen the Defense if Litigation Arises 

THINK TANK TOPICS INCLUDE 

David J. A. Hayes III 

Vice President & 

General Counsel 


Jane Howard-Martin 

Assistant General Counsel 

Labor & Employment 


Rachel L. Barack 

Sr. Corporate Counsel 


Andrew Fisher 

Director – Legal Affairs 


Moderator: 

Monique Gibson 

Attorney 


Steven H. Taylor 

Vice President 

Regulatory, Labor 

and Employment 

FedEx Express 

Lucia Padilla 

Senior Attorney 

Employment & Labor 

Law Group 

Qwest Corporation 

Jeffrey M. Tanenbaum 

Labor & Employment Practice Leader 

Nixon Peabody LLP 

The Paper Trail: Documentation For Decisions That Support 

the Employer’s Legitimate Non-Discriminatory Reason(s) for 

Action Taken 

• Well written and comprehensive documentation of 

performance issues and prior discipline 

- on personnel forms, mandating complete explanation 

of the reason or reasons for the disputed issue 

- ensuring records of job performance justifying 

termination/adverse job action 

- consistency and existence of internal paperwork/ 

documentation 

- using contemporaneous documents to establish 

the real reason for the action 

Other Preventive Measures to Avoid Unfavorable Facts 

in Litigation: Policies and Practices and Consistent Application 

of Policy/Practice 

• Taking steps and having procedures in place to reduce 

the risk of being sued 

• Educating and training workforce, supervisors, and 

management about anti-discrimination laws/harassment 

prevention and reporting and not to act on their own 

outside of HR or the employer’s policies/procedure 

• Compliance with company procedure/policy (by the 

employer and/or the employee) 

• The employer’s consistency (or lack thereof) in its decisionmaking 

and avoiding inconsistent application of company 

policy and/or practice 

• Thorough investigation: Having a process in place for 

a prompt, complete and competent investigation of the 

claim of discrimination before it went into litigation 

• Creating an administrative record that is accurate 

and not harmful to an employer’s position 

Conducting Reduction in Force That Avoid Discrimination Claims 

• RIF, How it’s handled: Conducting RIFs in an appropriate 

and thought-out manner 

• Making sure all descriptions of reasons for termination - 

beginning with responses to the agency - are consistent 

• Reasonable efforts to ensure nondiscrimination, including 

analysis to avoid disparate impact 

• Documenting RIF (and the selection process) appropriately 

Cost of Defending Cases and Legal Fees 

• Managing/containing legal fees 

• Managing the case so that defense costs do not drive the outcome 

• Managing outside counsel through realistic and accurate 

budgets 

• Do flat fees really exist? What alternative billing 

arrangements are being used successfully? 

Case Evaluation 

• Containment of defense costs by conducting an early case 

evaluation 

• Early case assessment: Whether to settle; Why (pros & cons) 

• The cost of the defense relative to settlement – ensuring you 

don’t set a precedent with regard to settling meritless claims 

• Examining the early settlements of unmeritorious claims 

simply because of high cost of defense to defeat such claims 

• Whether the action’s defense cost is likely to exceed the 

claim’s value 

• Whether some collateral exposure may force settlement 

of a meritless claim 

10:30 Morning Coffee Break 

10:45 State and Federal Regulation and Enforcement 

Activity Affecting the Employment Discrimination 

Landscape 

Leslie E. Silverman 

Partner 

Proskauer Rose LLP 

(former Vice Chair of the U.S. Equal Employment 

Opportunity Commission) 

Amy L. Bess 

Shareholder 

Vedder Price P.C. 

Congress and federal and state agencies have undergone 

sweeping changes under the Obama administration. The full 

impact of these changes remains to be seen, but employers and 

their counsel need to prepare for major changes to how the 

industry is regulated as well as to how those changes will affect 

the industry’s risk and litigation profile. Speakers will address 

the key issues currently in play, such as: 

• New laws, amendments to old laws, legislative intents 

behind the statutes, and pending bills/initiatives 

- The ADAAA and how it will impact on things such as 

defining what substantially limits one’s major life activities 

- Mental Health Parity 

- Lilly Ledbetter Act; Fair Pay Act 

- Employee Free Choice Act 

- Employment Non-Discrimination Act 

- GINA 


- FMLA-Military leave 

• Overview of California law: important distinctions 

you should be aware of 

- How does California differ from national trending 

- Why the distinctions of California practice are important 

(and how it will affect your pending cases) 

• Overturned Supreme Court decisions as a result of newer 

legislation 

• New case law involving new legislation where the law 

is not developed 

12:00 Networking Lunch for Speakers and Delegates 

1:15 Retaliation Claims: Why Claims Are Getting 

Higher Exposure Than Ever Before and How 

to Work Toward Dismissal 

Martha S. Doty 

Counsel 

Alston & Bird LLP 

D. Michael Reilly 

Shareholder 

Lane Powell PC 

Thomas E. Reddin 

Chair, Labor, Employment & Immigration Practice Group 

Winstead PC 

• The continued expansion of retaliation claims: what 

constitutes protected activity and/or adverse action? 

• Retaliation and whistleblower claims under an array of 

federal and state statutes and common law causes of action, 

including the recently enacted ARRA stimulus package 

• The impact of the Supreme Court opinion in Burlington: 

dealing with the new, lower, standard for retaliation claims 

to survive summary judgment 

• Overcoming the difficulties in defending retaliation claims 

because of the law and the nexus/causal connection issues 

to protected activity 

• Easy to plead, difficult to dispose of: To what extent have 

defense counsel succeeded at summary judgment? 

• Countering the usage of discrimination and whistleblower 

claims as precursors to retaliation claims 

• 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 

• Defending retaliation claims brought by current (rather 

than former) employees 

• Overcoming the problematic fact of temporal proximity 

between a complaint or EEOC charge and a subsequent 

adverse action or termination 

• Jury appeal of retaliation claims: How to overcome people’s 

belief that its 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 

2:15 Countering the Rise of Age Discrimination Claims 

in the New Economy as a Result of Individual 

Adverse Actions and in the Context of Reductions 

in Force 

Michelle S. Dangler 

Senior Counsel 

Allen Matkins Leck Gamble Mallory & Natsis LLP 

Michael Iwan 

Partner 

Dorsey & Whitney LLP 

Individual Adverse Actions 

• The number of age discrimination charges (under the 

ADEA) brought before the EEOC has grown significantly 

in recent years relative to other discrimination claims – 

what preventive measures should employers practice with 

this key trend in mind? 

• How the Supreme Court’s recent ruling in Gross v. FBL 

which requires that age now be the “decisive factor” in 

terminating the plaintiff, influenced defense strategies; 

does McDonnell Douglas still apply? 

• Thwarting plaintiff counsel’s efforts to demonstrate 

membership in the protected class – considering age bands 

among employees 40 and over and what it means to be 

similarly situated and “at least as qualified as” employees 

outside the protected class 

• Disposing of “pretext” arguments 

• Defending against disparate impact claims, when the 

standard “reasonable factor other than age” laid down by 

the Supreme Court has not been well defined in case law 

or regulations 

• The sympathy factor: How to defend an age discrimination 

case where the plaintiff is the primary breadwinner, and/or 

can present compelling personal circumstances (such as a 

spouse in declining health) 

• The damage mitigation dilemma in age discrimination 

claims: How to reconcile front and back pay with projected 

retirement and/or the failure or claimed inability to find 

suitable replacement employment 

Reductions in Force 

• Defending age discrimination cases arising out of reductions 

in force, and the challenges of obtaining valid releases and 

the increasingly difficult job market 

• Defending legitimate selection criteria such as salary relative 

to skills and future growth potential in the face of: 

- older workers tending to believe they are targeted in RIFs 

because of age more than ever 

- in a period of recession it’s easy to “disguise” terminations 

of older workers 

- aging workforce that either wants or needs to continue 

to work, leading to less turnover through regular attrition 

and voluntary early retirement programs, causing 

employers (particularly in the current downsizing climate) 

to make more frequent involuntary termination decisions 

affecting older employees 

• Lies versus statistics: Getting behind the numbers in RIFs 

and discrimination claims arising out of RIFs 

• How are RIF claims currently moving through the EEOC 

process? 

• Overcoming the complexity of RIF cases and the various 

case law that can apply 

• Mitigating damages in RIF cases 

3:15 Afternoon Coffee Break 

3:25 Key Procedural Strategies for Winning 

Employment Discrimination Cases: Removal, 

Motion Practice, Summary Judgment, Jury 

Communication and Advocacy and Beyond 

David Gevertz 

Vice-Chair, Labor & Employment Department 

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 

Linda Auerbach Allderdice 

Partner 

Holland & Knight LLP 


Ari Karen 

Principal 

Offit Kurman 

Jason C. Schwartz 

Partner 

Gibson, Dunn & Crutcher LLP 

Removal 

• Countering the naming of individual defendants on bogus 

claims to avoid removal to federal court and whether 

Supreme Court decisions in Twombly and Iqbal can 

stem this trend by plaintiffs’ attorneys 

• Applying Iqbal and Twombly to employment discrimination 

cases 

- how courts are interpreting the “plausibility” standard 

- arguing why Iqbal should apply to claims that 

traditionally do not require amplification 

- getting state courts to recognize the Iqbal decision 

• Developing removal strategies 

- when do you make a motion to remove? 

- pre-lawsuit discussions as sufficient cause for removal 

- using CAFA as a basis for removal 

- making a fraudulent joinder motion 

Summary Judgment and Dismissal 

• Determining whether you are preparing a successful summary 

judgment motion, or whether your case is destined for trial 

• Overcoming the difficult summary judgment standard 

in discrimination cases (and winning the motion) 

• Examples of weak claims surviving summary judgment 

due to the efforts of good plaintiff lawyers 

• Countering plaintiffs who lie, expand their stories, change 

their stories, never commit to a story, etc. to avoid summary 

judgment 

• Bringing the focus only on the actionable claims, not the 

“smoke and mirrors” 

• Positioning discovery so that a viable motion for summary 

judgment can be made 

Jury Communication and Advocacy in Employment 

Discrimination Cases: Humanizing the Employer, and 

Overcoming Sympathy for Plaintiffs and Bias Against Companies 

• When cases go to trial how do you determine your strategy 

for a winning jury trial 

• Overcoming overwhelming natural and understandable 

bias of the jury in favor of the employee 

• Jury sympathy and psychology for the “little guy”: how 

to handle 12 people in the box, all of whom have been 

or know someone who has suffered some sort of adverse 

employment consequence at some point in time 

• Establishing a theme of personal responsibility over deep 

pockets responsibility 

Discovery 

• Overcoming the challenges associated with the preservation 

and production of ESI and incorporating e-discovery 

considerations into employment discrimination cases 

4:40 The Rise of Civil Rights Class Actions: Dukes v. 

Wal-Mart & Its Rippling Effect on Discrimination 

Claims and Class Actions 

Julie A. Vogelzang 

Partner 

Duane Morris LLP 

Marcia E. Goodman 

Partner 

Mayer Brown LLP 

This past Spring, the Ninth Circuit certified the largest civil 

rights class action in U.S. history in Dukes v. Wal-Mart. The 

class was certified on behalf of women employees of Wal-Mart 

on a national level. This seminar will explore the fascinating 

twists and turns taken during this decade-long lawsuit, as well as 

provide analysis of the impact of the Ninth Circuit’s monumental 

ruling upholding (in large part) the lower court’s certification of 

the enormous class. The topics to be discussed include: 

• Overview of the case from a factual and legal perspective 

• The Ninth Circuit’s analysis of requirements of class 

certification under either Federal Rule of Civil Procedure 

23(b)(2) or (b)(3) and whether the Ninth Circuit has 

created its own “commonality” test 

• The use of expert opinions and statistical evidence 

to support certification of a class 

• The latest developments in the case 

• Beyond gender discrimination: what is the ripple effect? 

• How elements of the class action differ depending on 

whether it is a state law, federal or hybrid class action 

• The latest on statistic defenses once a class is certified – 

and how the statistics can be manipulated 

• How to control defense costs once a class is certified 

and mitigate damages exposure 

• Beyond gender discrimination: what is the ripple effect? 

• The Court’s analysis of requirements of certification 

under either Rule 23(b)(2) or (b)(3) 

• The use of expert opinions and statistical evidence 

to support class-wide gender disparities 

5:40 Day One Adjourns 

DAY TWO: Thursday, December 9, 2010 

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 

Theories/Defenses, Evidentiary Approaches, 

Statute of Limitations, Deciding Cases Early, 

Discovery, Forum Shopping and More 

Hon. James L. Robart Hon. Louisa S. Porter 

U.S. Dist. Ct., W.D. Wash. U.S. Dist. Ct., S.D. Calif. 

Hon. Susan Segal Hon. Robert Collings 

U.S. Dist. Ct., C.D. Calif. U.S. Dist. Ct., D. Mass. 

Hon. Lisa P. Lenihan Hon. Mark W. Bennett 

U.S. Dist. Ct., W.D. Pa. U.S. Dist. Ct., N.D. Iowa 

Hon. James P. O’Hara Hon. Eric F. Melgren 

U.S. Dist. Ct., D. Kan. U.S. Dist. Ct., D. Kan. 

Moderator TBA 

• Early defense considerations (motions to dismiss, 

preemption, summary judgment practice) 

• Novel approaches to case management 

• Discovery limits 

• Jury demands, motions to strike, 

• Conveying the complex to the court 

• Procedural & legal interpretative inconsistencies related to 

venue across federal circuits – differing approaches among 

some circuits on key standards of Title VII 

• Educating the court/administrative agency about the 

parameters of the law (and changes to the law). 

• Settlement, particularly after losing a decision 

on a 12(b)(6) motion 

• Judicial “pet peeves” 


9:40 Morning Coffee Break 

9:50 Special Issues in Gender/Sex Discrimination: 

Defending Against Pay and Compensation 

Discrimination Suits and the Latest Sexual 

Orientation/Gender Identity Claims 

Margaret Keane 

Co-Chair Global Employment Dispute 

Resolution Practice 

Dewey & LeBoeuf LLP 

Reed L. Russell 

Partner 

Phelps Dunbar LLP 

(former head of the Office of Legal Counsel (OLC) at 

the U.S. Equal Employment Opportunity Commission) 

Glass Ceiling, Gender Claims and the Equal Pay Act 

• Multi-plaintiff or class actions: considerations regarding 

membership in the protected class 

• The impact of the Lilly Ledbetter Fair Pay Act of 2009 

on the defense of compensation discrimination claims 

• Developing defendant’s evidence in a compensation 

discrimination claim after the Ledbetter Fair Pay Act 

(which effectively abolishes the statute of limitations for 

compensation discrimination claims), where a claim alleges 

a discriminatory decision occurred during a period for 

which records are no longer available 

• The Paycheck Fairness Act? – what’s the latest?; if passed, 

what will be the intrusion on employers? 

Sex Stereotyping/Sexual Orientation/Gender Identity 

• Does the acceptance of sex stereotyping as a sex 

discrimination theory provide a de facto prohibition on 

sexual orientation and gender identity discrimination? 

• What’s the latest on claims of discrimination against LGBT? 

• LGBT employment law protection under state and local laws 

• Special nuances on defending against discrimination suits 

with a transgender employee 

• Overt and covert harassment of LGBT employees 

in the workplace 

10:50 Labor Economics Versus Purely Statistical 

Approaches to Study Class Action Discrimination 

Claims 

Ali I. Saad, Ph.D 

Managing Partner 

Resolution Economics, LLC 

Michael S. Burkhardt 

Partner 

Morgan, Lewis & Bockius LLP 

David B. Ross 

Partner 

Seyfarth Shaw LLP 

Jon Geier 

Partner 

Paul, Hastings, Janofsky & Walker, LLP 

• 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 

12:05 Networking Luncheon for Speakers and Delegates 

1:10 Spotlight on Prevention: Disability Discrimination 

and Sexual Harassment Claims – Preparing Your 

Company & Your Clients to Implement Proper 

Policies That Will Be Defensible Against the 

Fastest Growing Claims 

Katherine Catlos 

Managing Partner- San Francisco Office 

Kaufman Dolowich Voluck & Gonzo LLP 

Melinda S. Riechert 

Partner 

Morgan, Lewis & Bockius LLP 

Philip J. Bonoli 

Partner 

LeClairRyan (Los Angeles Office) 

Stuart R. Buttrick 

Partner 

Baker & Daniels LLP 

Sexual Harassment Claims 

• 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 on the summary judgment stage 

• How to counter claims by employees who use false claims 

to force out senior management 

• The rise in “workplace bullying” 

• Sexual harassment claims where the relationship was 

apparently consensual at the beginning but then changed 

• How not to let extraneous information impact the cases 

• Defending against claims especially if a key executive is the 

perpetrator or there are allegations of physical abuse 

• Implementing policies that are easy to understand 

and promote appropriate behavior (including employee 

handbooks, training of supervisors, employee performance 

evaluations, etc.) 

Disability Discrimination Claims 

• Workplace discrimination and mental illness 

• When is the duty to engage in the interactive process triggered 

• How to properly engage in the interactive process to 

develop a reasonable accommodation 

• What is a “reasonable” accommodation 

• Litigating disability discrimination cases including 

tips re summary judgment motions 

• What efforts must employers take to look for alternate 

positions for disabled employees who are unable to perform 

their current jobs, etc 

• The crossover between disability claims and pregnancy claims 

• How long do you have to hold the job open for an 

employee out on a disability leave? 

• What do you have to do to look for alternate positions for 

disabled employees - different types of work? different states? 

• What is the interaction between the ADA/ADAAA 

and (1) workers compensation (2) FMLA/FEHA? 

• Who should engage in the interactive process with 

the employee (manager, HR, Occupational Health) 

and what should the role of each be? 

• When is the obligation to engage in the interactive 

process triggered? 

• Can you require an employee to be “100% recovered” 

before returning to work? 

• Can an employee unable to work recover damages? 

• How does California law differ from the ADA/ADAAA? 


• Non-traditional cases: Is viewing pornography a disability? 

Perfume allergies? 

• Can you terminate an employee for misconduct caused 

by a disability? 

2:25 Mediation and Arbitration of Discrimination 

Claims: Strategies and Techniques for Engaging 

in Successful Alternative Dispute Resolutions 

Sue Lanergan, Esq. 

Senior Associate General Counsel 


Patrick M. Sanders 

Partner 

Lathrop & Gage LLP 

Karen G. Schanfield 

Shareholder 

Fredrikson & Byron, P.A. 

Mediation 

• Determining which employment discrimination matters 

should be referred to non-binding mediation 

• How employers can use mediation effectively, how 

to structure it 

• Case valuation in the mediation context, and eliminating 

a plaintiff’s unreasonable settlement expectations early 

in a case 

• Mediation advocacy and negotiation skills 

Arbitration 

• Assessing the merits of arbitration as a means of resolving 

a discrimination, harassment or other employment 

practices claim 

- Quantifying the perceived efficiencies and cost savings 

of pursuing arbitration rather than litigation 

- Addressing the perception that an arbitration panel is 

more likely than a court to issue a compromise decision – 

and if so, why? 

- The impact of arbitration and litigation results in a 

decreased likelihood on settlement efforts 

- Other pros and cons of arbitration compared with litigation 

• Defense strategy to counter the increased trend of 

arbitrators “splitting the baby” to appease both sides 

• The latest on arbitration of employment discrimination 

class actions 

3:25 Conference Ends – Workshop B Begins 

Sponsored by: 

Resolution Economics is a market leader in 

applying statistical and economic analysis 

to class action employment matters. 

We are known for our innovative and creative approach to solving 

complex problems and our persuasive testimony in a class setting for 

both employment discrimination and wage and hours claims. 

ALUMNI 

Expand Your Network 

The complimentary ACI Alumni Program is designed 

to provide returning delegates with unique networking 

and learning opportunities beyond the scope of their 

conference experience. 

Expand your Network at www.my-aci.com 

INTERACTIVE WORKSHOPS 

A 

Tuesday, December 7, 2010 

2:00 – 5:00 P.M. 

(registration opens at 1:30 P.M.) 

Pre-Conference International Workshop: 

The Cross-Border Employment Agreements Swap 

– An Unparalleled Benchmarking Opportunity 

In this unique and interactive workshop, you will have the 

opportunity to submit actual employment agreements for 

analysis and discussion. Led by experts in international 

employment law, participants will discuss problems that they 

have encountered and practical solutions to overcome them, as 

well as pose questions and hypotheticals for group discussion. 

You will also receive copies of all documents submitted, allowing 

you to benchmark your agreements against those used by counsel 

for other multinational corporations. 

You will not want to miss this unique opportunity to have 

your actual agreements reviewed and commented on by other 

employment law professionals. 

Speakers TBA shortly! 

B 

Thursday, December 9, 2010 

3:30 – 6:00 P.M. 

(registration opens at 3:15 P.M.) 

ERISA Boot Camp for Labor & Employment 

Defense Attorneys: What You Need to 

Know About Benefit Plans and 

Fiduciary-Related Matters 

Christopher J. Rillo 

Partner 

Schiff Hardin LLP 

A valuable 2½ hour drill down into: 

• Establishing an ERISA Plan 

• ERISA preemption procedurally and substantively 

• Evidence outside the administrative record 

• Standards of review 

• Conflicts of interest 

• Fiduciaries and nonfiduciaries 

• Plan remedies 

• ERISA’s enforcement scheme 

• Service provider relationships 

• Attorney-client privilege and ERISA practice 

• Section 510 claims 

• ERISA fund claims 

• Intersection of ERISA with ADA, FMLA, and Workers’ Comp 

Highlights include: 

• Instantly access thousands of free presentations, PowerPoints 

and other event resources - Online! 

• Make direct contact with fellow conference alumni 

• Post a question or look for answers in our Industry Forums 

• Join a live Industry Chat in progress 

• Earn Forum points towards free conferences & workshops 

Register now: 888-224-2480 • fax: 877-927-1563 • AmericanConference.com/Discrimination 

© American Conference Institute, 2010

PRIORITY SERVICE CODE 

737L11-WEB 

COntaCt dEtaiLS 

REGiStRatiOn fORM 

ATTENTION MAIlROOM: If undeliverable to addressee, please forward to: 

LitiGatiOn COUnSEL, EMPLOYMEnt & LaBOR attORnEY, LitiGatiOn COUnSEL, EMPLOYMEnt COUnSEL, 

LaBOR COUnSEL, CLaSS aCtiOn attORnEY 

COnfEREnCE COdE: 737L11-Snf 

o YES! Please register the following delegate for EMPLOYMEnt diSCRiMinatiOn LitiGatiOn 

NAME POSITION 

APPROVING MANAGER POSITION 

ORGANIZATION 

ADDRESS 

CITY STATE ZIP CODE 

TELEPHONE FAX 

EMAIL TYPE OF BUSINESS 

FEE PER DElEGATE Register & Pay by Sep 30, 2010 Register & Pay by Oct 30, 2010 Register after Oct 30, 2010 

o ElITEPASS*: Conference & Both Workshops $3195 $3295 $3495 

o Conference & Workshop oA or oB $2595 $2695 $2895 

o Conference Only $1995 $2095 $2295 

o I would like to add __ copies of the conference documentation to my order - $299 each 

o I cannot attend but would like information regarding conference publications 

PaYMEnt 

Please charge my o VISA o MasterCard o AMEX o Please invoice me 

NUMBER EXP. DATE 

CARDHOLDER 

American Conference Institute’s 2nd National Forum on Defending and Managing 

EMPLOYMENT 

DISCRIMINATION 

LITIGATION 

Expert defense strategies for leading outside counsel and in-house counsel 

on litigating today’s key issues involved in representing management 

December 8-9, 2010 | Sheraton Fisherman’s Wharf | San Francisco 

o I would like to receive CLE accreditation for the following states: ___________________. See CLE details inside. 

*ELITEPASS is recommended for maximum learning and networking value. 

o I have enclosed my check for $_______ made payable to 

american Conference institute (T.I.N.—98-0116207) 

o ACH Payment ($USD) 

Please quote the name of the attendee(s) and 

the event code 737L11 as a reference. 

For US registrants: 

Bank Name: HSBC USA 

Address: 800 6th Avenue, New York, NY 10001 

Account Name: American Conference Institute 

UPIC Routing and Transit Number: 021-05205-3 

UPIC Account Number: 74952405 

Non-US residents please contact Customer Service 

for Wire Payment information 

✃ 

Featuring in-house faculty from: 





FedEx Express 


Qwest Corporation 


Also, hear from: 

Hon. James L. Robart 

Hon. Susan Segal 

Hon. Lisa P. Lenihan 

Hon. James P. O’Hara 

Hon. Louisa S. Porter 

Hon. Robert Collings 

Hon. Mark W. Bennett 

Hon. Eric F. Melgren 

Registration fee 

The fee includes the conference, all program materials, continental breakfasts, 

lunches, refreshments and complimentary membership of the ACI Alumni 

program. 

Payment Policy 

Payment must be received in full by the conference date. All discounts will be 

applied to the Conference Only fee (excluding add-ons), cannot be combined 

with any other offer, and must be paid in full at time of order. Group discounts 

available to individuals employed by the same organization. 

Cancellation and Refund Policy 

You must notify us by email at least 48 hrs in advance if you wish to send 

a substitute participant. Delegates may not “share” a pass between multiple 

attendees without prior authorization. If you are unable to find a substitute, 

please notify American Conference Institute (ACI) in writing up to 10 days 

prior to the conference date and a credit voucher valid for 1 year will be issued 

to you for the full amount paid, redeemable against any other ACI conference. 

If you prefer, you may request a refund of fees paid less a 25% service charge. 

No credits or refunds will be given for cancellations received after 10 days prior 

to the conference date. ACI reserves the right to cancel any conference it 

deems necessary or remove/restrict access to the ACI Alumni program 

and will not be responsible for airfare, hotel or other costs incurred by 

registrants. No liability is assumed by ACI for changes in program date, 

content, speakers, venue or arising from the use or unavailability of the 

ACI Alumni program. 

Hotel information 

American Conference Institute is pleased to offer our delegates a limited 

number of hotel rooms at a preferential rate. Please contact the hotel directly and 

mention the “ACI Employment Discrimination” conference to receive this rate: 

Venue: Sheraton Fisherman’s Wharf 

Address: 2500 Mason Street, San Francisco, CA 94133 

Reservations: 415-362-5500 

incorrect Mailing information 

If you would like us to change any of your details please fax the label on 

this brochure to our Database Administrator at 1-877-927-1563, or email 

data@AmericanConference.com. 

5 Easy Ways to Register 

* 

Ê ' 

: 

8 

MAIL American Conference Institute 

45 West 25th Street, 11th Floor 

New York, NY 10010 

PHONE 888-224-2480 

FAX 877-927-1563 

ONLINE 

AmericanConference.com/Discrimination 

EMAIL 

CustomerService 

@AmericanConference.com 

CONFERENCE PUBLICATIONS 

To reserve your copy or to receive a catalog of ACI titles go to 

www.aciresources.com or call 1-888-224-2480. 

SPECIAL DISCOUNT 

We offer special pricing for groups and government employees. 

Please email or call for details. 

Promotional discounts may not be combined. ACI offers financial 

scholarships for government employees, judges, law students, 

non-profit entities and others. For more information, 

please email or call customer service.

EMPLOYMENT DISCRIMINATION LITIGATION - Alston & Bird LLP

Create successful ePaper yourself

Delete template?

Save as template?