 allegation it did, the EEOC finds reasonable cause to believe that the allegations of the charge are true, or else it does not. If it finds that there is cause, the EEOC then invites the parties to conciliate and resolve the matter, or the EEOC, if that conciliation fails, the EEOC can then file suit and try to obtain relief based upon the information in the charge. Now the EEOC and all other federal enforcement agencies file only between four and five hundred lawsuits per year in federal district courts. That means that about twenty thousand five hundred are filed by private parties. If there is no suit by the EEOC, in a reasonable cause case, the EEOC issues a notice of right to sue. If the EEOC concludes its process and cannot determine that there is cause, it issues a notice of right to sue. There is a substantial amount of litigation taking place about what happens when the EEOC has not had the charge for the full one hundred and eighty days contemplated by the statute, and it has not completed its process. And the charging party requests an early notice of right to sue. Now after the hundred and eighty days are up, or after the EEOC completes its process, it's clear the charging party can get the right to sue. But there is a split among the circuits about the consequences of an early notice of right to sue when neither of those conditions have been satisfied. When a right to sue is received by the individual, then the individual has ninety days to file suit in federal court. Unfortunately the EEOC is delegated to individual offices the question whether it provides certified mail notice of a right to sue so that there is a documentation of when the individual received it. In some offices that do not do that, there then can be litigation about exactly when the notice of right to sue was received. How the charge gets drafted is interesting, usually the EEOC drafts the charge based upon the information provided by the charging party. And sometimes there are problems in that because the first contact can be months before the meeting at which the charge is drafted. Sometimes the attorneys draft the charge and sometimes the office does not like to accept that. Some offices have a policy of not having very many details in the charge and insisting that the details be placed in a questionnaire. And then the question is, is the information in the questionnaire part of the charge so that the individual has credit for exhausting as to that practice. Sometimes the employer does not receive the questionnaire so it does not have the notice. It's not received by the employer, it's pretty hard to argue that it's part of the charge since the statute requires that the charge be served on the employer. Unfortunately there's also another doctrine, unfortunately for plaintiffs there's also another doctrine that the plaintiff has not charged with the mistakes and lack of diligence of the EEOC. Some of the decisions rest upon whether the individual has sworn to the information that is on the questionnaire and have not addressed the question of whether the employer got notice. Clearly Congress intended though employers should get notice and there's a reason for that. Now the situation gets a little bit more involved because we have deferral agencies. Federal agencies are state or local agencies that are charged with the responsibility of trying to investigate charges of employment discrimination and part of the EEOC's budget goes to fund those. They're often work sharing agreements between the EEOC and those agencies so that a charge filed with one is considered dual filed it's also filed with the other one. Now some of the specifics of the exhaustion requirement is obviously a lot more information than we can give you in the course of this presentation but there are sources available to look further and I'm going to try to follow quickly the old rules of newspaper editors that the first paragraph should have the who, what, where, when, how and why. What has to be exhausted? Title VII, ADA, ADEA charges have to be filed. This is not a jurisdictional requirement it's subject to waiver and equitable estoppel. For section 1983 there's no exhaustion requirement. What has to be exhausted? Well the basis on which you're claiming discrimination, generally if you claim age discrimination you're not going to be allowed to sue about racial discrimination. There is an exception sometimes where the charging party could not know the basis of discrimination and it's the same practice. For example if a denial of promotion occurred because of gender discrimination and the charging party thought it was national origin or vice versa, the old Sanchez versus standard brands decision is accepted in most courts the charging party is protected. So what if the charging party sues because of denial of promotion and then later on wants to sue because of discharge and there's no claim of retaliation. Ordinarily the courts will not allow the discharge claim to be brought because it was not exhausted before the EEOC. The one example of post-charge discrimination that is generally accepted by the courts is post-charge retaliation. The courts assume that retaliation is going to occur often enough there's no need to go back to the EEOC but if the retaliation had already occurred at the time of the charge the employer, the employee can sue for retaliation only if it's included inside the charge. Evidence does not have to be exhausted. A charge can be very narrow and it can assert a claim of discrimination only as to one denial of promotion and the individual then may have a future promotional problem. Generally that's not going to be allowed to be raised in the court case because the individual limited the charge to just the one instance of discrimination. There is a general doctrine that most charges are drafted by lay persons so if they do not have counsel in particular the courts are a little bit more generous in construing the charge than it would be otherwise. But Rick as you said in many offices it's the EEOC that's drafting the charge so query whether that doctrine should really apply. One can raise that with the courts but that's not the way the decisions have gone. Against whom must there be exhaustion? Sometimes there are defendants in a court case that were not named in the court charge. Whether they can be included in the case depends upon whether they had notice, whether they would reasonably understand that the charge would have been made against them, whether they'd engage in actions that led to confusion as to who it was that was responsible, that type of thing. Who has to exhaust? If you have a situation- I wouldn't have the opportunity to conciliate because that's one of the bases of the study. That's right, that's right. Who has to exhaust? There is a doctrine called the single filing doctrine holding that if one individual goes before the EEOC alleging a practice that affected several individuals and the employer was unwilling to conciliate with respect to that and it's been broadened over- it had the opportunity to conciliate whether or not conciliation ever occurred. Other individuals affected by the same practice may be able to bring suit based upon the original person's charge. How long does a person have to exhaust? Well it's not forever. If there is no deferral agency, there's a 180 day period for filing a charge under the Title VII or the Americans with Disabilities Act. If there is a deferral agency, there's 300 days, but 60 of those days are in a special, potentially vanishing category. If the statute says that the deferral agency has a maximum of 60 days to consider the charge, if the deferral agency waives that, then the individual has 300 days to file the charge with the EEOC. What starts the time running to take all of these actions? When the individual is notified that there's going to be an adverse employment action, the person cannot wait for the action to take place. Correct. There is a difference between an employment action that a person is notified about that is final and subject to reconsideration and that starts the time running. The individual may grieve about it in a collective bargaining situation. That does not toll the time. The time is still running. But if the action is not final at the time, and it's got to go through some further processing inside to be final, then the time does not necessarily start to run. Not everything can be the subject of a suit. A performance evaluation, for example, that has no adverse consequences generally held to be something that cannot be sued upon. But supposing the performance evaluation was discriminatory, it's relied on later as a basis for a further action that can be sued on, then it could be challenged at that time. There is not time to get into the continuing effect cases and continuing violation cases. The Supreme Court has a case involving continuing violations. In this term, we'll get more guidance about that. That's the Morgan case against National Railroad Passenger Corporation. The federal sector is completely different. Unfortunately, there's not very much time to get into the federal sector. One thing I would mention before we move on, there was a very important 11-circuit decision I think in May of this year in HIPP versus Liberty National on the single filing or piggyback doctrine. It was under an age case, but the case law applies age decisions to Title VII and vice versa. And I think for any of the law clerks who are tasked with looking into that issue, the application of single filing, that's probably as recent a pronouncement as there is on the subject. Let me take less than 60 seconds to talk about four major differences in the federal sector. One is that if one is seeking compensatory damages, one has to exhaust it in the federal sector. That's a Supreme Court decision Gibson versus West recently handed down. There's only 45 days to file a charge in the federal sector. The EEOC and the agency charged engage in an actual adjudication process with decisions in the agency, but not the individual, is bound by the result of that. So an individual can go to court to seek further relief based upon the agency findings of discrimination. But if the individual chooses, the individual can go to court for de novo litigation. Finally, in the last 90 seconds or so for this segment, there are several bars to suit. One of them, judicial estoppel, has been largely resolved by the Supreme Court's decision in the Cleveland case. Basically, if an individual applies for disability benefits, social security benefits, disability insurance, and represents total disability unable to work, but then files a claim under the Americans with Disabilities Act in which they have to show that they are otherwise qualified to perform, they're not automatically knocked out of court, but there's a very heavy burden of explanation that falls upon them to explain how their representations are consistent. And remember, with respect to disability insurance and benefits, there's no reasonable accommodation. So some individuals can survive. Many do not. I think at this point we need to turn over to Mark to talk about process. Let me start first by talking about discovery and focusing really on what may be different about discovery and employment discrimination litigation from the more general discovery rules. One word of caution here, just as Wendy talked about and I'll talk about also, the significant change in the discrimination laws in 1991, we also had a significant change in the rules affecting discovery in the effect of December 1 of last year. And because of that, much of the precedent may be impacted, so there needs to be a cautionary note about cases prior to that time on discovery. Most of the discovery in employment cases is discovery by the plaintiff, the employee against the employer. Because in most cases it's the employer that has the records and information, has the explanations for the employment decision or action in question. Why did they hire someone? Why did they fire someone? How was the pay determined? The kinds of information that are sought relate to comparators. Goes beyond what we'll talk about in a moment in evidence about just individuals who need a test of being similarly situated, but other employees, other employees who may be either similar to the plaintiff or who may have allegedly suffered similar types of discrimination. Statistical evidence becomes a major part in employment discrimination litigation. And today, much of that's an electronic form. So many of the traditional disputes over electronic evidence discovery also take place with respect to employment discrimination cases, including issues of the cost and burden of assembling electronic evidence. Motive evidence is another issue in employment discrimination, because as you heard, it's not just an issue of adverse employment action, but was it based on a protected status of the individual, race, gender, et cetera? So you need to get into what was the motive of the employer for taking that action. And that, again, may deal with either statements that an employer or managers may have made that may show evidence of bias or the treatment of others in similar categories. With respect to sexual harassment, you also have, as mentioned before, the issues of how the employer has responded to other complaints of harassment, both to that employee and other employees and their policies. From the employee discovery by the employer against the employee, usually has fairly limited discovery in the form of document discovery. Whereas on the employer side, it's usually heavily on the document side, the employee rarely has very many documents with respect to their case. It may go as to the reasons they believe there is discrimination issues about their qualifications. One area where discovery from the plaintiff is very significant from the employer is in sexual harassment cases because, as distinguished from cases where the employer has made the decision about hiring or promotion, in the sexual harassment case, the employer may not know at all what the basis of the allegations of the claimant are in terms of the sexual harassment. The area of damages, both in terms of mitigation, which Wendy talked about, as well as the components of damages, including emotional distress, are areas where the employer would have extensive discovery requests. In the discovery, statistical evidence presents particular issues. Statistical evidence is critical in cases involving pattern of practice, almost always an issue in those kinds of cases, and cases involving disparate impact where you're trying to show that a given policy had an adverse impact on a protected group of individuals. As more and more evidence is moved into the electronic form, issues about record retention in terms of what form it's kept in, some information being kept electronically, some being kept in hard copy, all of those raise extensive issues for discovery. The kinds of discovery disputes that arise in terms of the scope of the discovery can be put into, in some ways, four categories. First, you have the temporal issue. That is, how far back can discovery go? You have someone who says, I was fired six months ago. Can you get information about other individuals who are arguably similarly situated going back two years, five years, 10 years? There's no hard and fast rule, although there's probably a dividing line that sort of accepts discovery going back two, three, maybe up to five years, and rejecting discovery apps in some basis for it going back much further than that. Next area is with respect to the geographic scope of employment. And assume for the purposes of this, you've got an employer that has multiple plants, multiple offices, multiple facilities. To what facilities should that discovery be limited? In fact, even within that facility, should it be limited to the department in which the individual worked, should it be limited to their particular supervisor, or should it be broader? This will in part depend upon what's being challenged. If you're talking about an individual termination decision by an individual supervisor based on race or gender, for example, then it will be hard for plaintiffs to justify they ought to get information with respect to terminations of other employees by other supervisors even in the same facility. The other hand, if you're challenging a policy which has broader implication, a sexual harassment case where the question of how the company has responded generally to those, then you may have a broad basis for a broader discovery in that area. I should say that plaintiffs are not going to know whether there's something idiosyncratic about the individual supervisor or whether it is a policy unless they have the broader discovery. So that's the argument that plaintiffs would be using. And again, it will depend upon the scope of what's being alleged in that given case. And it may be in stages. It may be that the broader discovery may have to wait based on some evidence of that. And that's always the tension between the fishing expeditions and the obvious burdensomeness of the discovery. The type of claim also will determine the scope of discovery or may determine the scope of discovery. If you have a hiring case versus a pay and promotion case, information about other types of claims may simply not be relevant or meet the test for discovery in terms of that. On the other hand, plaintiffs will undoubtedly argue for trying to show a mode of bias of a given supervisor or a given company than the fact that they discriminated against the plaintiff in this case in hiring, evidence that they may have discriminated against others in pay, promotion or termination may be relevant. That really sets up the sort of conflict that goes on and where you draw that line. An issue that comes up frequently with respect to information that is discovered leads to the question of confidentiality and protective orders. And it really is an issue on both sides or maybe three sides. You have personal information about the individual plaintiff who they may want to have protected from public disclosure, maybe medical records, maybe other things about their personal status. You have information that the employer may be concerned about that may be competitive. It may not rise to the level of trade secret, but how much they pay employees in a given classification may be competitive information, their benefit plans may be in some degrees competitive. Certainly their business plans and future plans are certainly competitive information that would need to be protected. The third area is information relating to other employees who are not plaintiffs or defendants in the case. The personal information about other employees in terms of their compensation, prior employment, etc. All of those frequently lead to negotiated and then court approved protective orders which may limit the use and disclosure of that information with a sensitivity to all three areas of those concerns. In fact in some cases you run into unemployment issues, some even more specific issues about confidentiality, about who can see the information. Where you have a plaintiff who is now going to work for a direct competitor, can you in fact screen that information from the plaintiff as opposed to their lawyer because of the adverse consequences of disclosing that information. Some special issues that arise with respect to discovery in employment cases. Attorney client privilege issues come up many times with respect to in sexual harassment cases for example, the investigation being conducted by a counsel, either outside counsel or in-house counsel. It will depend upon if the employer wants to rely on that investigation to show their affirmative defense of having acted properly, they're not going to be able to rely on the privilege with respect to that. There are also unique issues with respect to the discovery from the EEOC and the discovery communications. That is dealing communications by counsel for the plaintiff for example with former managers of the employer and the extent to which they are precluded, not purely a discovery issue, but even an issue closely related to discovery. The unique status of the EEOC also raises discovery issues because of their role as an investigatory agency, sometimes as the plaintiff and sometimes merely as the investigatory agency. There's both for them to disclose and in broader obligations to respond to discovery. The next subject I'm going to address is the issue of summary judgment and that is an issue obviously closely related to the burdens of proof we heard discussed earlier and there have been a surprising number of Supreme Court cases that deal either with the burden of proof or summary judgment. One would have thought now some 35 years after the passage of Title VII we would have sorted out how you go about proving a Title VII case and what are the elements of proof and how much evidence is a plaintiff need to either survive summary judgment or take their case to the jury and yet as recent as last term the Supreme Court was once again attempting to redefine the standards of proof and for summary judgment. We know and I assume you're all familiar with the basic standards of when summary judgment can or should not be granted so I won't go into those issues. But as Wendy mentioned earlier most courts follow the McDonnell Douglas both order and burden of proof in employment discrimination cases. That deals with setting up a primal case of a very non-owners burden the employer articulating the reason for non-discriminatory action and then the plaintiff having an opportunity to show that that reason or reasons were a pretext for intentional discrimination. Most cases in both the litigation stage and the summary judgment stage focus on the question of pretext and in fact last term the Supreme Court had an opportunity again to address that issue of what is meant and what is necessary at the pretext stage sufficient to establish an inference from which a jury finds discrimination that's Reeves v. Sanderson plumbing. And basically what the court held is that a jury is permitted to infer discrimination from the falsity of the employer's explanation. Not obligated to doesn't have to but can merely from the falsity of the employer's explanation find enough to infer discrimination and of course if there's enough for the jury to infer discrimination that means you can't get summary judgment the or directed verdict. The factors the court articulated to consider in determining whether or not there is enough evidence to go to the jury are what's the strength of the prima facie case? Was it a mere bare bones prima facie case or was there enough evidence that went beyond the bare bones of the prima facie case? What's the probative value of the proof that the explanation was false? Do you have somebody clearly on equivocally lying that would really suggest there up something or is there something less than that? And then what other evidence is there to support that the employer's case that it was not a discriminatory reason to make the decision? It's important to understand the distinction between false reasons which create the inference of discrimination and erroneous reasons and even not all false reasons are necessarily discriminatory. For example many supervisors have a hard time saying to someone you really are a poor performer. They might feel much more comfortably saying we needed to reorganize the department or we needed to reduce the size of the workforce. And so they may tell the employee that when the real reason is performance they simply didn't do it to cover up discrimination they just did it out of what they thought was a good way to put it. In fact you have law firms doing just the opposite. Some have suggested that they are telling associates that they are being terminated for performance when really it may be a decision enforced. Again being done not to cover up discrimination necessarily. But there is a problem when the government enforcement agency is tooled the wrong thing about what the basis for the action is or when someone swears to the wrong thing. I think that's a good point and when we talk about and you really have reasons being given at different stages. You have the reason being given to the employee at the time they are told of this you have the companies documenting it or not documenting it in their records you have the investigation, you have people being deposed about it and all of those may be grounds for where you may have differences significant or insignificant. I'll talk about differences in a minute. It's important to distinguish between false reasons and errors or mistakes. False reasons, lies create a basis for an inference of discrimination. But the fact that the employer who made the decision was mistaken doesn't create that same inference. So if an employer or manager thought someone committed a crime and committed them on that basis even though it's later proved that they were wrong that doesn't create the inference of discrimination because it wasn't a pretext it was simply a mistake they made just as if the employer thought someone was better qualified you need to show not merely that they weren't better qualified but some reason to believe that wasn't the real reason the employer was using such as they never even looked at the qualifications might be a basis for showing that. Inconsistent reasons also raise questions. Inconsistent as we just talked about there are various stages in the process inconsistencies between the written material a written documentation and what's orally said or among different people. It's quite common and particularly in a larger employer to have multiple people involved in an employment decision like a hiring decision or a termination decision or a promotion decision. And those individuals while they reach a common decision to either hire, fire or promote may actually have their own individual reasons for making that decision the fact that they have inconsistent reasons I thought this person was better qualified I thought this person had different skills we needed to really reduce the workforce now I thought it was performance doesn't necessarily create pretext but may create pretext and may create the inference of discrimination. One test is do the inconsistencies go to credibility. If it goes to the credibility of the decision maker that certainly provides a much stronger basis for inferring both discrimination and with respect to other issues. Where you have multiple reasons being articulated and when we talk about articulate the nondiscriminatory reason an employer may have multiple reasons I terminated the employee both for absenteeism and poor performance and because they in subordination. If the employees that were the plaintiff in this case is able to show that as to one or maybe two of those reasons they were false. I really didn't have as bad a attendance record and I really didn't shout at my supervisor but is unable to show pretext with respect to the poor performance that probably is not going to be enough because as long as the employer has can articulate a reason for its decision that is nondiscriminatory the fact that other reasons may be unable to be substantiated is not sufficient for the plaintiff. Except of course when the credibility of the supervisor is jeopardized by the plaintiff showing as to the one reasons they may not have anything to point to the poor performance but if the supervisor is the same one whose credibility has been damaged in the other area the plaintiff may be able to escape. Yes and I think that shows some of the complexity in this area. It's also when you're talking about showing evidence of bias or motive one of the areas of course is comments you heard reference to that earlier whether they're age or race or gender comments. Courts have looked at those in sort of two categories. They put them either in the category of evidence of bias in fact sometimes direct evidence of bias based on the statements and sometimes stray remarks. In fact stray remarks that may be even inadmissible because they're prejudicial. It's impossible to categorize any given set of remarks on one side or the other because you will find cases on both sides taking exactly the same remark and saying it's either inadmissible as a stray remark or as direct evidence of discrimination. The fact if a statement is subject to a double meaning it may in fact raise a jury question and therefore not permit summary judgment in that case. A brief comment about sort of the procedure on summary judgment because again not the general rules but as unique to employment areas where the moving party typically the employer but not always sets forth a set of facts which they claim are material and not disputed the burden may shift to the plaintiff to show that those facts really are in fact in dispute and they have to do that not through simply their belief or subjective belief but show actual admissible evidence someone with personal knowledge that can put those issues in fact or show that they need further discovery to do that. The EOC's reasonable cause determination is typically not sufficient because as described by the process to show a basis to defeat a summary judgment motion in that regard. This is all closely related to the subject of types of evidence that are both admitted and precluded from admission in employment discrimination litigation and again another caution prior to 1991 amendments to the Civil Rights Act and in particular Title 7 Title 7 cases were tried non-jury and so many of the decisions made prior to 1991 or for the couple of years subsequent to that cases were still being tried non-jury you had a judge deciding admissible evidence and deciding what weight the judge would give to that admissible evidence and being less concerned about the prejudice of that admissible evidence. Now that we're dealing with jury trials in almost all cases some of those cases that talk about the weight of the evidence may simply not be good precedent anymore. The most common types of evidence is comparative evidence because we're talking about a disparate treatment case you treated one group of employees different than another group of employees or one employee different than other employee based on their race, gender, etc. An example in a gender discrimination case a female employee would typically show that there was a male employee who was similarly situated in all relevant respects and was treated materially better wasn't fired was hired was paid more promoted. The defendant would show comparative evidence by saying no there are also other females who were also paid more than you were or promoted or there were other males who were treated the same or worse than you were. So that's sort of a broad category of fairly typical evidence in employment discrimination cases. The issues come about are were the individuals similarly situated among the questions are are we talking about individuals who had the same supervisor were the same standards involved was the same conduct involved terminated for one form of misconduct is that applicable to someone who was terminated for another form of misconduct. Whether differentiating or mitigating circumstances which show that the employees are really not similarly situated. You don't need an exact correlation but all of those factors will go to either the weight or possibly the admissibility of the evidence of incomparators. With respect to the the issue in this debate we talked about in the context of summary judgment between biased remarks which are either direct evidence or stray comments. The courts have looked at a variety of tests to decide sort of which side they fall. One isn't the ambiguity of the statement. The more ambiguous it is it may be less probative value. The time between the alleged statement and the conduct of a supervisor made a racist comment five years ago. Or is that enough to show that race motivated that supervisor in a decision five years later? Was it a one off comment of somebody telling a racial joke or was it a pattern of comments that would show bias? What was the nature of the comment? Was it one that was severe enough to show severe bias or was it one that perhaps didn't rise to that level? Also who made the statement? Was it made by another supervisor who played no role in the decision process and therefore there's no basis to infer motive from that statement? Was it made by the actual decision maker? Was it in effect adopted by the decision maker? That is other employees were telling racial jokes and that supervisor while not telling them laughed along with them suggesting that perhaps there was some bias in the part of that supervisor. A hard question comes with respect to senior executives. You have racially, allegedly racially or gender or age bias statements made by senior executives who may have no role whatsoever in the given employment action being challenged. Courts will look at that on the one hand, plaintiffs will argue that shows a corporate culture that may pervade the corporation. The defendant will say that given manager wasn't making the decision based on that and therefore it's irrelevant that the CEO may have an age bias or a gender bias when he played no role in that given decision. I'll see you may have evidence of racially bias statements being made by someone who while they didn't make the decision influenced the decision, someone who recommended the employment action, someone who investigated the harassment case, all of those may be factors which may allow a statement to admit it into evidence even though it's not made by the decision maker. On the other hand corporate culture evidence can be used on the other side to show that this manager has gone out of his or her way to treat minority employees better. Has particularly been involved in affirmative action activities, company-wide demographic statistics may be used affirmatively by the employer to show that there isn't any basis to infer discrimination from this particular conduct. One of the challenging areas because there are compelling arguments on both sides deals with what is sometimes called me to evidence, another form of comparator evidence. You have a case involving a given employee who says I was terminated because of my age. Not as part of a broader reduction in force but an individual case. And he says I know five other employees that were terminated because of their age and wants to introduce evidence of those five other employees. On the other hand the employer says I have reasons why all of those employees, separate reasons why they were terminated unrelated to their age. Are you going to force me in the context of employee A's case to litigate all five of those other cases and establish in this case the jury the good faith basis for those other decisions. And that's the tension in that issue of evidence. In terms of how far a court should go in allowing that evidence because obviously it can be very prejudicial to the employer. Obviously there's arguments of a relevancy and of course of the burdens of this. The other hand if you're talking about a hostile environment sexual harassment case it's far more likely to be able to show other evidence of conduct against others because that may be directly relevant to the question of whether or not the employer created a hostile environment because it's likely if there was a hostile environment created it was created not just for one employee but on a broader basis. Wouldn't you say Mark that it's also relevant to the question whether the employer has got an adequate system to prevent discrimination. Sure. I mean in the harassment area you have all of those issues about the policy, what it's done about the policy, how it's reacted to the policy which may provide a basis for allowing that evidence. The hard questions are really when you're talking about other individual claims of discrimination that you're forced to litigate in the context of a given case. There continues to be litigation over the role and the misability of an EOC determination as Rick explained this is not an adjudicative process based on an adversarial process but merely a determination of reasonable cause, reason to believe that discrimination may have occurred. We found particularly in the pre-91 cases courts more willing to allow that evidence in rather than have to decide the question, simply say I'll decide what way I'll give it. Because of the potential for prejudice, here's a federal agency making a determination that there was reasonable cause and the possible confusion to the jury of that finding, I think there's a stronger argument now for saying this really should not be admitted into evidence on the reasonable cause. The EOC has essentially eliminating finding no reasonable cause, they don't issue no reasonable cause determinations anymore you don't have the argument very much on the other side where the employer wants to introduce the reasonable, the non-reasonable cause finding. To the extent it's admitted into evidence you then force the employer to have to perhaps litigate the EOC investigation process to show why that reasonable cause determination shouldn't be given any weight, what did the EOC do how did they investigate it and what evidence did they consider that leads to all of that. And try to take discovery from the EOC exactly of all of that. Other kinds of circumstantial evidence, or at least in a broad category of circumstantial evidence that may be admitted and raise issues are the fact whether the employer followed its own procedures or policies with respect to termination or reductions in force how it was documented when it documented, was it documented after the fact does that go to show both employer motive and bias, because as we I think all recognize in most cases this is not a question of having direct evidence of discrimination but trying to infer discrimination from a series of events. On the other hand again you have balanced that against potential prejudice for the employer many employers have very elaborate rules and detailed rules which simply don't get followed not for any bias reasons but because of expediency relying on individual supervisors to do things simply may not follow each of the steps in a given process not for any improper motive but simply part of a normal operation. As we mentioned earlier statistical evidence is a major issue in, or can be a major issue in employment cases. Particularly those that involve either an allegation of a pattern and practice discrimination the allegation that an employer is laying off more older workers, more women than males is discriminating in its hiring process against a given category. Those almost by their nature call out for statistical evidence because you're talking about a pattern of conduct. Similarly in a disparate impact case where the claim is the employer has a neutral policy which has an adverse impact on a protected group, a height requirement which would adversely affect certain minorities or women. Statistics are obviously critical to that kind of case. On the other hand an individual case while statistics may be admissible they're typically not enough on their own to prove individual discrimination. Statistics could be a whole separate section of this program employment statistics alone because of the very many issues. I just want to touch on a few of the more basic issues that relate to statistics. First when you're talking about comparative statistics that is what percentage of minorities or women did an employer hire. You need to look to cautionary issues. One is you need to decide what is the appropriate pool to compare them to. The appropriate pool is those individuals who possess the qualifications for the given job in question. If you're hiring engineers it's not the percentage of the workforce in general is a particular minority group but what percentage of those who have the appropriate engineering degrees and it may be some other skills that even narrow the group further. Secondly what's the appropriate comparison on the other side is that the employer's present workforce not. I think most courts agree that's not the appropriate comparison because those hiring decisions were made over a long period of time and many of which are not presently actionable. What we're really talking about is what decisions were made within the relevant time period the hiring that took place within a time period as a comparison against what one might have expected to take place during that period. Then the question that comes up in all statistical cases is merely because there is a disparity is that enough to infer discrimination. The classic example if you flip a coin 100 times and you get 51 heads does that imply there's something wrong with the coin. I think we'd all be pretty comfortable saying no. If you flipped it 100 times and it all came up heads you begin to question the coin. The statisticians have developed a test for that called standard deviation that says basically is it something that was likely to have occurred by chance or is it so far beyond the likelihood that I occurred by chance that I can infer that something else was going on here other than by chance. The Supreme Court and other courts have adopted a basic test that says if there are more than two or three standard deviations in the disparity that's enough to infer that it didn't occur by chance. It may not be enough to infer discrimination but it's enough to discount chance as the reason which it occurred. In many of the early employment discrimination cases you didn't need very sophisticated statistics because you were really talking about an inexorable zero. The employer had no women in a job that had no minorities in a given job. The size of the sample also affects the validity of the statistics and the question of what factors to consider. Employment decisions are usually based on a multiple of factors. You're talking about a promotion decision it might be tenure, it might be one's education, it might be one's performance ratings. All of those factors may go into the equation and therefore one common technique used is a multiple regression analysis which allows all the various factors to be considered simultaneously to determine so you're in effect comparing people who are similarly situated. There the debate goes over the question of factors which weren't included whether they're material, do they affect the results, can you rely on the given equation that's being offered by the particular expert. One very brief comment because I think it's critical in the employment area has to do with rule 412 dealing with evidence related to sexual misconduct. Obviously this would come up most frequently in sexual harassment cases. The rule bars evidence which is offered to prove the alleged victim engage in other sexual behavior or to prove alleged victim sexual predisposition. There's an exception to the rule for civil litigation and it's otherwise admissible if the probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to the party in question. Victims reputation is only admissible if placed in controversy by the alleged victim. The rule 412 also sets up a procedure by which such evidence has to be offered. Thanks, Mark. Rick, even management lawyers are willing to concede that a whole lot of cases have issued where plaintiffs have received relief. In the remaining eight or so minutes, nine minutes, would you devote some attention to the various forms of relief available to plaintiffs in employment litigation including attorney fees? Okay, first there's, take title 7 as an example, there's injunctive relief. There are basically two kinds of injunctive relief. Individualized relief that restore the individual to the position that he or she would have been in absent discrimination and that can be in-statement, reinstatement promotion, hiring, a variety of things. And there's general injunctive relief. You see general injunctive relief most often in class actions or government pattern and practice cases. Sometimes there are some forms of general relief that are handed down in individual cases such as criminal order that may require that harassment complaints be dealt with differently from here on out. There are general standards with respect to the orders. The court has to craft the order in a way that minimizes the burden on others. There may be some burden on others that can't be avoided but you try to minimize the burden on others. Will you have a large scale case and it may not be possible to determine which particular individual would have received a promotion in the absence of discrimination. The back pay can be shared around among them in what's called a class-wide or pro-rata approach and basically the courts will accept any reasonable proposal by any of the parties for determining which individuals should receive the in-statement for the number of positions. There can be goals and timetables requiring race or gender conscious relief with respect to hiring and promotions in cases that demonstrate the kind of strong record that's required for those cases. Wendy has already covered fully the questions of back pay and the dispute about collateral benefits, the elements of back pay and so forth. Pre-judgment interest these days is customarily awarded. There is not a bright line rule for what is the rate of interest that should be used for pre-judgment interest. Plainness like the internal revenue service rates compounded annually. Sometimes we like to argue that they should be compounded daily but the court has a broad range of rates to go to. The state rule for pre-judgment interest is not necessarily going to be followed in the federal court. Front pay compensates the plaintiff for the two different situations. One of them is it is a given that injunctive relief does not require the displacement of even a person who is favored by discrimination. There may be civil service rules that do that but it's not generally done under the fair employment laws. So the plaintiff may have to wait until the next vacancy occurs in order to get the job that would have been the plaintiffs if there had been no discrimination. Front pay compensates for the difference in compensation between the plaintiff's present job and the job that the plaintiff is in the waiting list for. There can also be front pay when the plaintiff has been discharged or is no longer able to work with the employer until the plaintiff finds a suitable other job as with a duty to mitigate. The plaintiff is not required to change careers to take a demeaning job. There's a rule of reason that operates on that. The duration of a front pay award is something that depends to some extent upon the uniqueness of the job, the uniqueness of the skill set of the plaintiff. Customarily a front pay award will run for one to two years. The largest one I know involved a trained dispatcher for a large commuter railroad in New York City. There were only four jobs in the country and that individual got 20 years of front pay but that is a very unusual case. The liquid data damages that are available under the Age Discrimination and Employment Act and the Family and Medical Leave Act equal pay act the ADEA and the EPA use a different standard from the Family and Medical Leave Act. The liquid data damages are available under the ADEA and the EPA if the violation is willful. That follows pretty much the same standard as is followed with respect to the availability of punitive damages under Title VII in the Americas with Disabilities Act. Under the FMLA there's a statutory standard that there is no liquid data damages if the employer acted in good faith and had reasonable grounds for believing that his conduct was not a violation but those are not the same standards. Under the 1991 Civil Rights Act Wendy already covered the fact that there are caps based upon the number of employees. What does one do with respect to an employment agency or a union? There's been very little answers so far in the cases since the 1991 Act. It may be that unions very seldom engage in discrimination but of course there are some cases but just not ones that have addressed this question. One cannot mention the caps to the jury. The district judge is not allowed to do it and council are not allowed to do it and breaking that rule may be prejudicial to the other side and require a retrial on damages. The caps apply to the combination of compensatory and punitive damages. Now if the defendant is a public sector employer, state, local, or federal there are no punitive damages that are available because that's prohibited by federal common law and it's specifically prohibited by the 1991 Civil Rights Act. The 1991 Act says that a plaintiff in a case that a plaintiff can recover damages under Title VII if the plaintiff is unable to recover under Section 1981. In practice that has been applied to allow plaintiffs to bring suit under both Title VII and Section 1981 and then choose which damage award to accept but there cannot be double recovery. The caps have generally been held by those circuits to address it as applying to each claimant not to a claim. So for example if a plaintiff has one lawsuit involving sexual harassment and another lawsuit involving retaliation whether or not they're ever consolidated the plaintiff is held to the cap a single cap, an aggregate for all of the claims. No court has yet, no court of appeals at least has yet addressed the question what happens if there's a violation separated in time. Another act of sexual harassment say that occurs some years later there may be another cap for that but the basic rule is the cap is proclaimant not proclaim. To get compensatory damages the plaintiff has to prove that there is some injury, a simple technical violation and for example under the Americans Disabilities Act employers are not allowed to ask some questions before there is a conditional job offer. If the employer asks the questions too early that does not by itself injure the plaintiff and the courts have held that the plaintiff is not entitled to compensatory damages for that. Personal testimony is accepted as a basis for compensatory damages by many courts but pretty much all courts agree that if that testimony is too vague and conclusory it bothered me a lot that's not going to be enough. Damages can be sought against state and local officials in their personal capacities not under Title 7 or the ADA but under 42 USC section 1983 and there's the defense of qualified immunity available to that. Section 1983 is also available where the plaintiff can prove that discrimination intentional discrimination was the official policy of the municipality. Section 1983 is not available against states. Punitive damages the Supreme Court and the Colestad case held that there is no egregiousness requirement but that the plaintiff does have to show that there should be vicarious liability under the facts of this case for the acts of supervisors. The most common there are several grounds for vicarious liability the most commonly used is that the discrimination took place because of an agent acting in a managerial capacity in the scope of employment. With respect to that very common situation the employer has a good faith defense available i.e. that it was taking reasonable steps to make sure that it and all of its managers complied with the law. The courts that have been construing this have generally held that an employer that knowingly conceals evidence of discrimination for example burying a report done by a consultant indicating that there are massive problems or that falsely communicates the basis for the action and lies about the action does not qualify for the good faith defense and that does qualify for an award of punitive damages. The failure to respond to a complainer discrimination has been held to qualify in an inappropriate response i.e. going after the complainant rather than trying to find out whether the conduct occurred qualifies. But supposing the employer takes longer than the plaintiff likes to do the investigation there may be good reasons for that by itself at least in the case where an employer ultimately did an adequate investigation and took adequate action that does not qualify for any punitive damages. A good faith effort to comply has to involve not just a paper policy but actual implementation of the policy. And now we have the subject of attorney's fees if we have time for that. Mr. Zinniver, do we have time for that? Rick, I promise I will not consider this a waiver of the right to receive attorney's fees for prevailing parties. However, we are out of time and I'll duly note that attorney's fees are available to a prevailing plaintiff and under a Christiansburg standard of more stringent standards to a prevailing defendant. But that's our program for today. We hope you found it useful. I want to again thank our faculty for explaining this complicated subject so clearly. A couple of things before we go. Please remember that the written materials for this program are available on the FJC website as well as the one-page evaluation forms. Please fill these out and fax them back to us at the number at the bottom of the form. This is the only way for us to know if you found this program useful and how we might improve it. Also on the web at www.abanet.org slash labor you will find selected chapters of basic equal employment opportunity law and procedures. This is a very helpful reference. And finally in addition to those resources the ABA Labor and Employment Law section in conjunction with national affairs are offering a free CD-ROM copy of the Seymour and Aslan Equal Employment Law update. This is Rick Seymour, our own Rick Seymour. You can get your free CD-ROM either by writing Chris Meacham at the American Bar Association section of Labor and Employment Law at 750 North Lakeshore Drive, Chicago, Illinois 60611 or by going to the section's website www.abanet.org for the Federal Judicial Center and the American Bar Association's Labor and Employment Law section. I am Pete Zinnber. Goodbye.