2004 MIDWINTER MEETING Westin Mission Hills Resort & Spa, Rancho Mirage, California March 24 27, 2004
Meeting Agenda
Wednesday, March 24, 2004
7:00 a.m. 8:30 a.m. Registration and Continental Breakfast (Celebrity Foyer and Plazas) 7:30 a.m. 8:30 a.m. New Member Orientation and Breakfast/Diversity Outreach (Ambassador 1)
8:30 a.m. 12:00 p.m. Track #1 and Track #2: On Wednesday morning, the formal programming for the EEO Committee begins with a choice of program options for attendees. Track #1 is designed for those who desire to sharpen their EEO litigation skills, and the sessions focus on recent trends in dealing with the EEOC as well as practical advice and strategies for handling EEO litigation from inception of the case to the trial of an action. Track #2 focuses on best practices in handling employment and EEO issues on a day-to-day basis.
Track #1: New Lawyer/Development Track Wednesday, March 24, 8:30 a.m. 12:00 p.m. (Ambassador 4) In this three-part litigation track, both seasoned EEO practitioners and those newer to the field will find these sessions useful in dealing with EEO litigation. After providing an update on EEOC strategies during charge investigations and litigation, the focus shifts to case strategies in handling EEO litigation from the plaintiff, employer and union perspectives.
8:30 a.m. 9:30 a.m. An Insiders View of the EEOC (Ambassador 4) This session will provide an update on EEOC charge handling and investigations, including what to expect from the EEOC once a charge is filed, the dos and donts of dealing with charges, and new and varied approaches used by the Commission. It also will cover both plaintiff and employer bar perspectives, and the special situation of Commissioner charges where the EEOC is the plaintiff.
Moderator: Terrence H. Murphy Klett, Rooney, Lieber & Schorling Pittsburgh, Pennsylvania Speakers: Paul Steven Miller Commissioner, Equal Employment Opportunity Commission Washington, D.C. Fred W. Alvarez Wilson, Sonsisi, Goodrich & Rosati Palo Alto, California J acqueline McNair Regional Attorney, Equal Employment Opportunity Commission Philadelphia, Pennsylvania Kimberlie K. Ryan Ryan Law Firm Denver, Colorado
9:30 a.m. 10:30 a.m. Litigation of an EEO Case: Part I Setting the Stage for a Winning Case or Effective Defense (Ambassador 4) This two-part program is designed to provide both experienced practitioners and employment litigators newer to the field with practical advice and strategies relating to the key stages of EEO litigation up to trial. An experienced panel of employment litigators and a jurist, who has presided over numerous EEO cases in an active and trend setting jurisdiction, will discuss the nuances of making the best tactical decisions in handling EEO litigation. In the first module, the speakers cover the beginning of an EEO case drafting and responding to a complaint, developing a case theme, general case strategy and initial discovery. Topics covered include checklists in filing and responding to a complaint, affirmative defenses, the scope of required initial disclosures and priority in discovery. Moderator: Elaine Drodge Koch Bryan Cave, LLP Kansas City, Missouri Speakers: Michelle A. Reinglass Reinglass Law Offices Laguna Hills, California Charles Powell, IV Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Birmingham, Alabama Honorable Susan Illston U.S. District Court, Northern District of California San Francisco, California J ulie Richard-Spencer Robein, Urann & Lurye Metarie, Louisiana
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10:30 a.m. 10:45 a.m. Break (Celebrity Plazas) 10:45 a.m. 11:45 a.m. Litigation of an EEO Case: Part II Second Stage Discovery Issues and Case Disposition Motion Strategy (Ambassador 4) In the follow-up session, panelists address second stage issues in EEO litigation electronic discovery issues, including appropriate scope and who pays, use of experts in EEO litigation and case dispositive motions. Moderator: Elaine Drodge Koch Bryan Cave, LLP Kansas City, Missouri Speakers: Michael Delikat Orrick, Herrington & Sutcliffe New York, New York Michelle A. Reinglass Reinglass Law Offices Laguna Hills, California Honorable Susan Illston U.S. District Court, Northern District of California San Francisco, California J ulie Richard-Spencer Robein, Urann & Lurye Metarie, Louisiana
Track #2: Best Practices Track Wednesday, March 24, 8:30 a.m. 12:00 p.m. (Ambassador 5-7) In this three part track, senior employment lawyers discuss cutting edge labor and employment issues and best practices during the lifecycle of the employment process. 8:30 a.m. 9:30 a.m. Part I: Recruiting A World-Class and Diverse Workforce (Ambassador 5-7) In the first panel, senior in-house counsel from major corporations discuss best practices in recruiting a diverse and world class workforce. Expected topics include recruiting systems, affirmative action, diversity, contingent workforce issues, and hiring procedures. Moderator: Lisa Bickel Assistant General Counsel and Lead HR Counsel Honeywell Aerospace Phoenix, Arizona Speakers: Hinton J . Lucas, J r.
Associate General Counsel and Chief Administration Counsel Dupont Company Wilmington, Delaware 3
Elizabeth W. Calvert Vice President and Labor and Employment Group Manager United Parcel Service Atlanta, Georgia George C. Whipple, III Director, Counsel and Employment Litigation Americas Credit Swiss First Boston LLC New York, New York
9:30 a.m. 10:30 a.m. Part II: Best Practices in Retaining and Evaluating Employees (Ambassador 5-7) In the second panel, senior in-house counsel from major corporations, the former Assistant Attorney General for Civil Rights and a senior union attorney discuss best practices in retaining and evaluating employees. Expected topics include occupational segregation, performance evaluations and forced rankings, harassment education and training, glass ceiling litigation, and managing leaves across a large organization (FMLA, ADA, Military, Workers Compensation). Moderator: Eric D. Reicin Associate General Counsel Sallie Mae, Inc. Reston, Virginia Speakers: J oyce Margulies Chief Counsel-Human Resources International Paper Company Memphis, Tennessee Bill Lann Lee Lieff, Cabraser, Heiman, & Bernstein, LLP San Francisco, California Connye Y. Harper U.A.W. Detroit, Michigan T. Warren J ackson Vice President Workforce Diversity, Assistant General Counsel Hughes Electronics Corporation El Segundo, California
10:30 a.m. 10:45 a.m. Break (Celebrity Plazas) 10:45 a.m. 11:45 a.m. Part III: Best Practices in Termination, Outsourcing and Reduction in Force (Ambassador 5-7) In the final panel, senior in-house counsel from major corporations and an AARP attorney discuss best practices in terminations, plant closings, outsourcing work offshore, closing plants, and reductions in force.
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Moderator: Melinda Socol Herbst Executive Director and Associate General Counsel Morgan Stanley New York, New York Speakers: Rosalind Gordon
Vice President and Human Resources Legal Counsel Pitney Bowes Inc. Stamford, Connecticut Pam S. Poff Deputy General Counsel and Senior Vice President UBS Financial Services, Inc. New York, New York Daniel B. Kohrman, Esq. Senior Attorney, Employment AARP Foundation Litigation Washington, D.C.
11:45 p.m. 1:00 p.m. EEO Committee Recognition Luncheon (Ticket Event: $30.00) (Ambassador 2&3) Moderator: Robert K. McCalla Fisher & Phillips New Orleans, Louisiana
Please join us to say hi to old friends and/or meet other members of the EEO Committee. At this special luncheon we will honor the former co-chairs of the EEO Committee representing employers, employees and unions for nearly 40 years since the Committees inception. 1:00 p.m. 1:15 p.m. Welcome from Section Chair and Co-Chairs (Celebrity D&E) The Section Chair and the Co-Chairs from Equal Employment Opportunity Committee and Employee Rights and Responsibilities Committees will formally welcome the attendees to the J oint Midwinter Meeting. Section Chair: Stephen D. Gordon Williams & Iversen St. Paul, Minnesota EEO Committee: Barry A. Hartstein, Employer Co-Chair
Vedder, Price, Kaufman & Kammholz, P.C. Chicago, Illinois Kelly M. Dermody, Employee Co-Chair Lieff, Cabraser, Heimann & Bernstein, LLP San Francisco, California Louis P. Malone, Union and Employee Co-Chair ODonoghue & ODonoghue Washington, D.C.
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ERR Committee: Stewart S. Manela, Employer Co-Chair Arent Fox et al. Washington, D.C. Darlene A. Vorachek, Employee Co-Chair Abrahamson, Vorachek & Mikva Chicago, Illinois Marvin Gittler, Union and Employee Co-Chair Asher, Gittler, Greenfield & DAlba, Ltd Chicago, Illinois.
1:15 p.m. 2:15 p.m. The View from Washington (Celebrity D&E) In this plenary session, which will include attendees from both the EEO and the ERR Committees, senior government officials from the EEOC and U.S. Department of Labor will provide an update on agency actions and recent enforcement activities. Moderator:
Speakers: Barry A. Hartstein Vedder, Price, Kaufman & Kammholz, P.C. Chicago, Illinois Honorable Cari M. Dominguez Chair, Equal Employment Opportunity Commission Washington, D.C. Eric Dreiband General Counsel, Equal Employment Opportunity Commission Washington, D.C. Victoria A. Lipnic Assistant Secretary of Labor for Employment Standards Administration, U.S. Department of Labor Washington, D.C.
2:15 p.m. 2:30 p.m. Break (Celebrity Plazas) 2:30 p.m. 5:30 p.m. EEO Update (Ambassador 4-7) The session continues the tradition of a lively and informative review of the years leading equal employment opportunity decisions from two of the leading practitioners in the field. Speakers: Paul Grossman Paul, Hastings, Janofsky & Walker, LLP Los Angeles, California Richard T. Seymour Lieff, Cabraser, Heimann & Bernstein, LLP Washington, D.C.
2:30 p.m. 3:45 p.m. Session One: Paul Grossman 3:45 p.m. 4:00 p.m. Break 4:00 p.m. 5:15 p.m. Session Two: Richard T. Seymour 5:15 p.m. 5:30 p.m. Questions and Answers: Messrs. Grossman and Seymour
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5:15 p.m. 6:00 p.m. EEO Committee Leadership Meeting (Ambassador 5) 6:30 p.m. 7:00 p.m. New Member Reception (Masters Plaza) 7:00 p.m. 8:30 p.m. Joint Reception for EEO/ERR Committee (Masters Plaza)
8:30 a.m. 12:00 p.m. Track #1 and Track #2: On Thursday morning, attendees have a choice of program options. Coordinated with the ERR Committee as part of a three-day program, Track #1 includes skill building, a mock trial and a review of videotaped jury deliberations. Track #2 provides a substantive track exploring cutting-edge issues involving diversity in the workplace and ethics issues affecting practitioners in the EEO field.
The Thursday morning presentation is part of a three-day program that focuses on a case involving alleged sexual harassment, retaliation and Sarbanes-Oxley violations. After a brief summary of the case scenario, the Thursday presentation will be a skills building session, focusing on selected issues that could arise in a trial involving the case scenario presented. 8:30 a.m. 10:00 a.m. Part I: Jury-Related Issues in Harassment and Retaliation Claims (Celebrity E) Strategies in dealing with a jury will be presented from the perspective of employees, plaintiff and union counsel, with input from a jury consultant. Topics to be covered will include jury selection and voir dire strategies, jury questionnaires and related issues. Moderator: Barbara J ean DAquila Flynn, Gaskins & Bennett, LLP Minneapolis, Minnesota 7
Speakers: Lynne Hermle Orrick, Herrington & Sutcliffe, PC Menlo Park, California Susan J ones Jury Research Institute Alamo, California Dan Stormer Hadsell & Stormer Pasadena, California Michael Subit Frank, Freed, Subit & Thomas, LLP Seattle, Washington
10:00 a.m. 10:15 a.m. Break (Celebrity Plazas) 10:15 a.m. 11:15 a.m. Part II: The Use of Technology and Related Evidentiary Issues in Retaliation and Harassment Litigation (Celebrity E) Rather than a show and tell, this session will be practical primer on using technology to introduce evidence What? When? How? and dealing with the evidentiary issues that could arise in the course of a trial. Topics covered include the types of objections that arise and the admissible use of such evidence during opening statements, trial and closing arguments. Speakers: Honorable Mark W. Bennett U.S. District Court, Chief Judge, Northern District of Iowa Kathryn Burkett Dickson Dickson - Ross, LLP Oakland, California Michael Reiss Davis, Wright, Tremaine, LLP Seattle, Washington
11:15 a.m. 12:30 p.m. Part III: Proving and Limiting Damages in Harassment and Retaliation Claims (Celebrity E) Plaintiff, Management and union counsel will focus on presenting and defending against damage claims in the course of trial, including a review of lay testimony in handling emotional distress claims and dealing with punitive damages in a post Kolstad environment. Moderator: Christopher P. Reynolds Morgan, Lewis & Bockius New York, New York Speakers: J ames H. Kaster Nichols Kaster & Anderson, PLLP Minneapolis, Minnesota Robert M. Vercruysse Vercruysse, Metz & Murray Detroit, Michigan 8
J on H. Rosen The Rosen Law Firm Seattle, Washington
8:30 a.m. 10:00 a.m. Managing Diversity in the 21 st Century: Trends and Challenges (Ambassador 4-7) This panel will explore current trends and challenges in managing a diverse workforce, including new EEO-1 reporting categories, intrarace color discrimination claims, and claims involving both employees and supervisors from historically underrepresented racial groups. Moderator: Adam T. Klein Outten & Golden LLP New York, New York Speakers: Naomi Earp Vice Chair, Equal Employment Opportunity Commission Washington, D.C. Ronald S. Cooper Steptoe & Johnson Washington, D.C. William Doyle Deputy Director, Office of Federal Contract Compliance Programs U.S. Department of Labor Washington, D.C. J ohn L. Quinn Nakamura Quinn & Walls LLP Birmingham, Alabama
10:00 a.m. 10:15 a.m. Break (Celebrity Plazas) 10:15 a.m. 11:15 a.m. Ethics Issues in the Discovery Process (Ambassador 4-7) Ethical issues and concerns often arise in the discovery process. Two practitioners will discuss a variety of scenarios and issues, and provide practical guidance on how to handle these kinds of situations. Moderator: Debra A. Millenson Akin Gump Washington, D.C. Speakers: J ohn Gaal Bond, Schoeneck & King, PLLC Syracuse, New York
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Richard Zitrin Zitrin & Mastromonaco, LLP San Francisco, California
11:15 a.m. 12:30 p.m. Image-Based Discrimination: How Far Can Brand/Image Drive Employment Selection/Assignment Decisions? (Ambassador 4-7) This panel will discuss a flurry of cases challenging alleged image-based employment discrimination, including the recent case against Abercrombie & Fitch, and prior litigation involving the Mondrian Hotel and Hooters. In the ultra-competitive retail and service-oriented marketplace, brand identification is important, but how far can companies enforce brand identification through their employees before running afoul of Title VII, the ADA, or the ADEA, among others? Moderator: Kelly M. Dermody Lieff, Cabraser, Heimann & Bernstein, LLP San Francisco, California Speakers: Thomas A. Saenz Mexican American Legal Defense and Educational Fund Washington, D.C. Donald R. Livingston Akin, Gump, Strauss, Hauer & Feld, LLP Washington, D.C. Kathleen Mulligan Equal Employment Opportunity Commission Los Angeles, California
6:00 p.m. 7:00 p.m. Reception for Contributors to Employment Discrimination Law (by invitation only) (Oasis Courtyard)
7:00 a.m. 8:30 a.m. Registration and Continental Breakfast (Celebrity Foyer and Plazas) 7:00 a.m. 8:00 a.m. Management Roundtable Breakfast (Ambassador 2&3) 7:00 a.m. 8:00 a.m. Union Roundtable Breakfast (Ambassador 1)
8:00 a.m. 12:30 p.m. Track #1 and Track #2: On Friday morning, attendees again have the choice of a litigation or substantive track. Track #1 involves the second prong of the three-day litigation program, a mock trial, which is being coordinated with the ERR Committee. Track #2 is a substantive track and cover a broad range of issues including ADR, class actions and discrimination issues tied to employee benefits.
Track #1: Litigation Track Friday, March 26 8:00 a.m. 12:30 p.m. 8:00 a.m. 12:30 p.m. Mock Trial Involving Sexual Harassment, Retaliation and Sarbanes-Oxley Claims (Celebrity E) Representatives from the ERR Committee present a mock trial of a case involving alleged sexual harassment, retaliation, Sarbanes-Oxley violations and state law causes of action.
Track #2: Substance Track-Friday, March 26, 8:30 a.m. 12:30 p.m. 8:00 a.m. 9:30 a.m. ADR Program Recent Trends Involving Arbitration and Other Cutting Edge ADR Issues (Ambassador 4-7) ADR remains one of the fastest-changing areas of our practice, with such developments as the Ninth Circuits abandonment of Duffield, the Supreme Courts decision to let arbitrators decide whether a class claim may be arbitrated (Green Tree Financial Corp. v. Bazzle), and the EEOCs implementation of a pilot program to suspend charge-processing while parties use certain employers in-house ADR procedures. This panel will discuss the years developments, and their implications for EEO claims and litigation, from the standpoint of the EEOC, and management, plaintiff and neutral practitioners. Moderator: Lisa Salkovitz Kohn Arbitrator and Mediator Chicago, Illinois 11
Speakers:
Leslie E. Silverman Commissioner, Equal Employment Opportunity Commission Washington, D.C. Gary Phelan Outten & Golden New York, New York Charles C. Warner Porter Wright Morris & Arthur Columbus, Ohio David White General Counsel Screen Actors Guild Los Angeles, California
9:30 a.m. 11:00 a.m. Class Action Issues (Ambassador 4-7) This panel will discuss recent developments in EEO class action/multi-plaintiff and pattern and practices litigation under Title VII and related laws. Recent trends and hot topics will be discussed, including communications with class members, trying the case in the media and settlement strategies. Moderator: Kelly M. Dermody Lieff, Cabraser, Heimann & Bernstein, LLP San Francisco, California Speakers: Lawrence R. Ashe, J r. Ashe & Rafuse Atlanta, Georgia J ocelyn D. Larkin The Impact Fund Berkeley, California Kevin Brodar Associate General Counsel United Transportation Union Cleveland, Ohio
11:00 a.m. 11:15 a.m. Break (Celebrity Plazas) 11:15 a.m. 12:30 p.m. Discrimination and Employee Benefits (Ambassador 4-7) Although ERISA generally provides employers with substantial flexibility in the design of employee benefit plans, other federal laws, particularly the Americans with Disabilities Act (ADA) and the Age Discrimination Employment Act (ADEA), may restrict employer plan design choices. Based on the Health Insurance Portability and Accountability Act (HIPAA), Congress also added a new prohibition under ERISA prohibiting discrimination in group health plans on the basis of health status factors. Litigation involving contraceptives also has sparked additional litigation in this evolving area of the law. Current trends and litigation involving benefits-related issues will be the focus of this panel. 12
Moderator & Speaker:
Louis P. Malone ODonoghue & ODonoghue Washington, D.C. Other Speakers: J ohn A. Ray Sadey & Ray St. Louis, Missouri Charles Sandy Mishkind Miller, Canfield, Paddock & Stone Grand Rapids, Michigan
7:00 a.m. 8:30 a.m. Continental Breakfast (Celebrity East Plaza) 7:30 a.m. 8:30 a.m. Diversity Breakfast [Sign-up Requested] (Ambassador 1&2) All EEO Committee, including new attendees, are invited to attend this breakfast meeting to discuss the diversity objectives of the EEO Committee and Labor and Employment Section. Input and suggestions for improvement are welcome.
Track #1: Litigation Track: Saturday, March 27, 8:30 a.m. 10:00 a.m. 8:30 a.m. 10:00 a.m. Report on Mock Trial, Analysis of Jury Deliberations (Joint EEO/ERR Program) (Celebrity E) In the third and final part of the joint program with the ERR Committee, a jury consultant and jurist review and comment on jury deliberations of the mock trial. 13
Track #2: Substantive Track: Saturday, March 27, 8:30 a.m. 10:00 a.m. 8:30 a.m. 10:00 a.m. Track #2: Substantive Track: Trends in Harassment (Ambassador 4-7) What is new in harassment litigation? This panel will discuss recent trends involving both individual and class action litigation. Topics covered will include case updates on the Faragher-Ellerth defense, union liability issues and recent case developments involving pattern and practice and class action harassment litigation. Moderator: Marcia A. Mahoney Special Assistant to the Provost Northwestern University Evanston, Illinois Speakers: Stuart Ishimaru Commissioner, Equal Employment Opportunity Commission Washington, D.C. J erry Hunter Bryan Cave, LLC St. Louis, Missouri Nancy Bornn Bornn & Surls Marina Del Rey, California Mark Pearce Creighton Pearce Johnsen & Giroux Buffalo, New York
10:00 a.m. 10:15 a.m. Break (Celebrity East Plaza)
Plenary Sessions: Saturday, March 27, 10:15 a.m. 12:30 p.m. The EEO Committee Midwinter Meeting will close with two final plenary sessions, which will discuss issues of interest to all members of the EEO Committee. 10:15 a.m. 11:15 a.m. Mixed Motive Cases Revisited: The Impact of Desert Palace v. Costa on Employment Litigation (Ambassador 4-7) One of the most hotly debated issues among employment attorneys today is the impact of the Costa case. What is a mixed motive case? Has the McDonnell Douglas standard been eliminated? Two leading practitioners in the field will discuss the plaintiff and employer perspectives concerning this important Supreme Court decision. Moderator: Marilyn S. Teitelbaum Schuchat, Cook & Werner St. Louis, Missouri
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Speakers: Barbara Berish Brown Paul, Hastings, Janofsky & Walker, LLP Washington, D.C. Paul W. Mollica Meites, Mulder, Burger & Mollica Chicago, Illinois
11:15 a.m. 12:30 p.m. Plenary Session: ADA Update (Ambassador 4-7) Since the 1999 trilogy of Supreme Court decisions restricting the scope of coverage under the ADA followed by the 2002 Toyota decision, the courts have continued to struggle with the scope of a protected disability, including the regarded as prong of the ADA. The scope of the Supreme Courts decision in Barnett regarding reasonable accommodation also continues to be debated on the courts. The EEOCs leading expert on the ADA will address the current state of the law, which will be followed by the employer perspective from a leading management attorney. You wont want to miss this lively exchange! Moderator: Bernice McReynolds Vercruysse, Metz & Murray Detroit, Michigan Speakers: Richard C. Mariani Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Morristown, New Jersey Peggy Mastroianni Associate Legal Counsel Equal Employment Opportunity Commission Washington, D.C.