INDEX OF BRIEF BANK TOPICS

	NOVEMBER 1998 (through Doc. No. 438)

This is a THIRD update to the brief bank index, adding documents 321-438.  The index includes references to all documents.  References to the new documents or new index topics are in bold.  As in the prior index, documents are listed by type (e.g., discovery, motions, trial briefs, TROs) at the end of the index (pages 50-56).  Training documents are included in the last section, after the section “Types of Documents.”

To avoid confusion, since this is a CUMULATIVE index rather than just an update, you should throw away the old (June 1998) index. 

ADA
Accommodation
Burden on employer to show undue hardship 149
Carrying wheelchair-bound person 381
Duty continues when former accommodation no longer effective 373
Collective bargaining agreement rights do not necessarily take precedence over statutory rights 113, 338
Employer cannot unilaterally impose 239
Employer must consider without request 278
Financial status of defendant relevant to evaluating accommodation 253
Interactive process not engaged in 381
Leave 340
Maintain medical coverage 2, 12
McDonnell-Douglas test improperly applied 149
Necessary for non-essential functions, even in “regarded as” case 389
Reassignment 149, 201, 206, 275, 373, 434
Duty triggered when formerly successful accommodation no longer effective 373	
Refusal forced employee to seek disability benefits 287
Under CBA 206, 338
Rehabilitation Act, ADA broader than 113
Transfer to another job 149, 201, 206, 287
Travel 
Not required 275
Work-related event 381
Undue hardship 
Burden of proof shifts to employer 149
Union has duty to accommodate 113, 206, 338

Union and employer must negotiate 113
Benefits
AIDS cap 81
Certification of disability to obtain other benefits not absolute defense 138, 174, 216, 286, 287
Mental disability benefits unequal to physical 116, 117, 284, 375
Retirement, different for disabled 230
Standing of totally disabled individual to challenge plan 116, 117, 375
Blanket exclusion policy violation 85, 86, 239, 342, 430
Business necessity
Improperly expanded to allow medical examination 370
Certification of disability 
Employer disability plan does not consider ability to work with accommodation 340
Not determinative on issue of ability to do job 138, 174, 340
Treated as after acquired evidence 138, 174
Claims period 
Not limited by 2-year back pay period or by charge filing period 199
Class of jobs, excluded from 86, 244, 272, 430 
Class claims proper 26
Color blindness 172
Collective Bargaining Agreement 
Reassignment 206
Compared to Rehabilitation Act
Broader range of accommodations in ADA 113
Union has duty to accommodate under ADA 113
Conditional offer, withdrawn 97, 245 
Conduct resulting from disability 201
Conflict with regulations or conduct of other federal agencies
DOJ indictment of defendant not inconsistent with EEOC’s challenge to exclusion of individuals with record of rehabilitation for drug/alcohol abuse 239
DOT regulations 244
FAA regulations (less stringent) 239
NIOSH/OSHA general duty clause 383
SSA regulations 244, 270, 277, 278, 286, 287, 331 
Covered entity 81, 269
Diabetes 85, 86 
Direct threat  12, 86, 97, 201, 239, 259, 340, 370, 383, 423, 434

Disability
Asymptomatic condition 273
Certification of total disability to obtain other benefits not absolute defense 138, 174, 286, 287, 331, 340
Definition of 98, 173, 177, 201, 335, 337, 339, 340
Consistent with Rehab Act 158
Employer disability plan determines as disabled person who can work with accommodation 340
Individualized assessment required 85, 86, 97, 283
Mitigating factors such as medicine, prosthetics not considered 158, 177, 275, 335, 337, 342
Future disability 383
Long term plans
Employer disability plan determines as disabled person who can work with accommodation 340
Distinction between mental & physical discriminatory 116, 117, 284, 375
Eligibility includes former employees 284, 375
Discharge 2, 12, 177, 201, 273
Training case study 388
Essential functions 423
Determined when worker last worked (long term benefits) 284
Determined by evidence available when decision made 245
General duty clause of Occupational Safety & Health Act does not require employer to reject applicant who in the future may not be able to perform 383
Job-related and consistent with business necessity 393
No longer able to perform--reassignment duty triggered 373
Travel 275
Good faith reliance on doctor no defense 393
Hiring  85, 86
refusal to hire persons not "100%" well 26, 283
Impairments (included "regarded as") 
AIDS 12, 62, 370
Asymptomatic HIV 273, 370
Back 149
Cancer 2, 177, 376
Carpal tunnel syndrome 272, 383
Color blindness/impairment of color vision 173
Diabetes, 85, 86, 342

Epilepsy 55, 244, 423
Hearing deficit 180
Hip/mobility impairment 430
Hypothyroidism 158
Lifting 149, 371
Monocular vision 434
Obesity 97, 283
Individualized assessment required 85, 86, 97, 239, 283, 342, 393
Differs from request for accommodations 239
Judicial estoppel 138, 174, 216, 229, 239, 244, 270, 278, 286, 287, 292, 331, 340
Leave as accommodation 340
Light duty limited to non-retirement eligible 76
Major life activity 
Comparing functioning to average person 371
Lifting 149, 371
Reproduction/sexual activity 273
Working 149, 177, 272, 342
Medical examination
Business necessity defense 370
Consent to during settlement discussions, excluded 209 	Irrelevant in "regarded as" case 55
Post-offer 393
Predictive of future disability 383 (carpal tunnel), 393 (herniated disk)
Rejection based on “standard medical assessment code” 430
Medical policy
AIDS exclusion 81
Requiring disclosure of prescription medicine 155
Return from leave must be "without limitations" 149
Mental benefits 116, 117, 284, 375
Pre-offer inquiries 97, 155, 332, 383
Prohibition covers non-disabled employees 155, 332
Predictive tests 383
Prescription medicines, required disclosure 155
Prima facie case
Disparate discipline establishes 175
“Regarded as,” only need perform essential functions without accommodation 389
Replacement by non-disabled unnecessary 175
Selection criteria must be job-related and consistent with business necessity 393

Qualified individual with a disability (QUID)
Good faith reliance on doctor no defense 393
Individualized assessment 85, 86, 97, 239, 247, 339, 342, 393, 423
One who can work with accommodation qualified 340
Prima facie case 149
Totally disabled worker qualified because when he could work, he performed satisfactorily 138, 174, 284
Totally disabled worker challenging disability policy 116, 117, 284, 292
Reassignment 149, 201, 205, 287, 338, 434
Record of disability
Cancer 177, 376
Rehabilitation for drug/alcohol abuse 239
"Regarded as" disabled 55, 85, 86, 97, 177, 180, 239, 283, 342, 376, 383, 389, 430, 434
Ability to perform nonessential functions not element of prima facie case 389
Asymptomatic HIV 273
History of drug/alcohol abuse 239
Medical condition irrelevant 55
Mobility impairment 430
Retaliation
Nondisabled protected 339
Retirement, differential benefits 230 
Return to work 
Employer refuses to allow employee back 26, 149,244, 247
Individualized assessment 247
"Without limitations" 149
Safety concerns 
Blanket exclusion not justified 86, 239, 342
Fear of future harm to employee, not justification for refusal to hire 383
Social security disability 
Application for benefits (denied) does not preclude claim 331
Receipt of benefits does not preclude claim 174, 244, 270, 286, 292
Substantially limited
Absence from work not needed to establish 177
Decrease in performance not necessary; condition made performance considerably more difficult 177
Compared to ability of average person 371
Excluded from a class of jobs 239, 244, 247, 272, 339

Factual issues precluding summary judgment 180, 339, 371
"Foreclosed generally" from employment, improper standard 149, 272
Limitation must be considered with regard to disabled individual’s education and skill levels 339
Mitigating factors such as medicine, prosthetics not considered 158, 177, 275, 335, 337, 342
Recurrent, fatal nature of disease 177, 273
Undue hardship
Burden of proof on employer 149
CBA conflict relevant but not dispositive 338
Reassignment 373
Union SEE ADA, Accommodation
Workers’ Compensation
Receipt of benefits does not preclude claim 229

ADEA
Advertising for new college graduates 34 
Age 60 no-downbid policy (airline pilots) 288
Average ages not probative 101, 131
Benefits 227, 230, 313, 314, 315
Lower pension benefits discriminatory 293
Charge not necessary for EEOC suit 123, 134, 313
Condition precedent, tender back of benefits 233
Cost justification defense 136, 431
Demotion 203, 274
Determining factor 119
Discharge
Training case study 388
Cumulative evidence of discrimination 118, 274
Discovery
Sample interrogatories/document request for complex class case  189
Disparate impact theory 
After CRA 1991 24, 314, 315, 316
Plaintiff need not chose either impact or treatment if either may be established 24, 314, 315, 316
Evidence
Probity--look to speaker, context 203
Hicks discussion 163
Intervention 142
Judicial estoppel
Effect of social security disability application 277
Jury Instructions

Direct evidence need not be close in time to discharge 119
Determining factor 119
Jury trial
Not available on Section 217 claim 243
Light duty
Retirement-eligible not offered 76
Mandatory retirement see Retirement, below
OWBPA (Older Workers Benefit Protection Act) 
Pension benefits are age-related 314
Offer of alternate employment 
Claim not obviated because of offer 299
Relevant for damages, not for establishing claim 299
Pension eligibility not RFOA if proxy for age 314, 315, 316
Pension fund not proper defendant 293
Portal-to-Portal limitations do not apply to EEOC suits 190, 312
Preempts state law 136
Pretext 132, 237
Established if reasons so arbitrary that unreasonable to believe 132
Inference that one reason false because all or most of others are specifically refuted is reasonable, even if that one reason is not specifically refuted 132
Reasonable factor other than age (RFOA)
Orderliness of succession and planning compensation not RFOA supporting mandatory retirement 134
Pension eligibility not RFOA because proxy for age 314, 315, 316
Recent college graduate requirement 34
Reduction in force 131, 237
Reinstatement 227
Retirement
Bridge to social security or Medicare defense inapplicable 431
Cost justification defense 431
Disability, age differential in benefits 230 
Eligible employees not allowed light duty 76
Lump sum payment only available to employees under “x” years old 203, 313, 431
Mandatory 
Company directors 134
Police officers 227
Plan facially discriminatory 203

Union liability 431
Statistical evidence re: average age irrelevant 131
Statute of limitations not applicable after CRA 1991 24, 190, 312, 313, 410
Tender back of benefits as condition precedent to suit 233
Timeliness of suit 233, 410
Failure to file within 90 days of withdrawal of charge 233
Waiver void under OWBPA 233
Willfulness 163, 399
Jury instruction contradicted oral instruction 399
Withdrawal of charge violates OWBPA 233

ADR  SEE Arbitration

AIDS
Benefit caps 81
Deposition before litigation 125
Discharge 12
Exclude evidence re: infecting others, prior drug use, sexual practices 207, 208, 210 
Expedited trial 128
Fifth amendment assertion re: infecting others 208
Jury questionnaire due to sensitive nature of information 62, 255
Protective order for charging party's identity 67, 68
Transfer case to protect charging party 69

Admissions SEE	Party Admissions

Adverse Inference
Records destruction 28, 31

Affirmative defenses (includes 8(b) defenses)
Challenge sufficiency in Motion to Strike 61, 66, 141
Conditions precedent 396, 428
Discovery regarding factual bases 416
Exhaustion of remedies 61, 65, 66
Failure to conciliate  11, 90, 91, 396, 403, 404, 428
Failure to file charge 61
Failure to state a claim 61, 65, 90, 110, 111, 126, 141, 403
General denial (should be stricken) 61, 91
Good faith belief that wages did not violate FLSA (EPA cases) 65

Good faith belief that women could not perform as tailors because one had tried and failed 379
Good faith belief not basis for denial of injunctive relief 379
Investigation in "bad faith" no defense 104
Judgment on the pleadings, not proper method to challenge 66
Laches 313, 330
Not employer 395
Untimely raised 404

After-acquired evidence
Benefits 
Certification of disability for purpose of obtaining benefits may be analogized to 138, 174
Hiring--misconduct at prior job not relevant where defendant knew of alleged misconduct but continue to employ that person 43

Answer See also Affirmative Defenses
Failed to raise affirmative defense 396
General denial (should be stricken) 61, 91

Apparent authority
Basis for sexual harassment claim 109, 148

Appeal
1291 326, 401
1292(b) certification 48
Denial of pre-judgment interest 171
Interlocutory, opposed 48, 232, 326, 401
Jury instructions, objection preserved 343
Stay pending 46, 433

Applications See also Documents, Records
Destruction/Failure to maintain 4, 16, 56, 103
Failure to maintain as basis for excluding contrary evidence regarding applicant pool 16

Arbitration	
Civil Rights Act of 1991 rejects mandatory 20, 38, 236, 294, 333, 368
Class claims can proceed even if individual claims subject to 369
Class claims independent of individual 326 (EEOC), 369

Collective Bargaining Agreement cannot waive statutory rights 231, 285
Condition of employment 294, 295, 333, 368
Consideration from employer 368
Cost sharing 38
EEOC's recovery unaffected by claimants' agreement 51, 236, 326
EEOC claim is independent of claimant’s 326
Federal Arbitration Act (FAA) does not apply to employment contracts 38, 107, 137, 157, 168, 295
Forum neutrality 294
Future claims, cannot be waived 20, 38, 157, 294, 333, 368
Gag orders 38, 167
Gilmer distinguished 38, 51, 107, 157, 333
Insufficiency of remedies, basis for challenge 20, 38, 157, 168, 204, 368
Knowing and voluntary agreement 20, 38, 204, 236, 294, 295, 333
Limited discovery 204
Mandatory agreements-challenge to 20, 25, 38, 51, 100, 107, 157, 168, 204, 236, 285, 294, 295, 326, 333, 368
Misrepresentations by employer 204
Prospective waiver, improper 20, 38, 157, 294, 333, 368
Public policy 368
Railway Labor Act mandate does not supplant Title VII rights 100
Remedies, reduction from statutory remedies basis for challenge 20, 38, 157, 168, 204, 368
Retaliation 
Job conditioned on signing agreement 25, 38
Review standard “whether arbitrator correctly applied governing law” 334
Securities industry agreements provide discovery and protections not available in challenged procedures 157
Threats of dismissal 295
Union cannot waive employee's right to redress under employment discrimination statutes 107, 231, 285
Waiver of right by late assertion 51

Attorney-client relationship SEE Privilege

Attorney's fees
Award should not be linked to damages 341
Bad faith as basis 53, 70
“Billing judgment approach” rejected 341

Christiansburg 70, 351  
Claims not frivolous, unreasonable or without foundation 70, 75, 87, 234, 351  
Dismissed case when realized evidence insufficient 87
EAJA not applicable to Title VII  47, 351
EAJA requires bad faith 53
Improperly awarded 53, 70, 87, 234
Linking award to damages undermines policy of Title VII 341
Lodestar 341
Mixed motive case 179
Prevailing plaintiff 88, 155, 276, 282, 341
Reasonableness of amount requested 70, 276, 351
Rule 11 70, 282
Waived by failure to request 282

BFOQ-Sex
Factual basis lacking 31
Home health care worker 28
Non-pregnancy 59
Reasonable alternatives to meet privacy interests 13, 31
Waitstaff 59
Weight loss counselor 13

Back Pay
Adverse inference from raising Fifth Amendment re: tip reporting alternate to denial 265
Conform to evidence 398
Includes raises, sick leave, vacation and overtime 227, 324
Increase award to compensate for additional tax liability 320
Interest, compounding 319
Interim earnings
Offset by quarter or year rather than cumulatively 317
Mitigation See Separate Heading, Mitigation
Pension payments not deductible 227
Period continues while claimant in school 324
Period extends beyond initial parity of wages in training position, since in job denied, wages ultimately would have exceeded 324
Recovery not precluded by Fifth Amendment invocation re: tip reporting 265
Taxes, income, or social security, not deductible 227
Unemployment compensation not deductible 212, 227
Union not necessary party to determine 323

Bad faith
Basis for attorneys fees 53, 70

Bankruptcy 309, 391, 392, 432
EEOC claims 432
Executory contract 392
Hearing to accept consent decree in EEOC case 392
Obtaining relief from agents, officers of corporation and parties to CBA 432
Procedures for relief 432
Stay 432

Beards SEE basis for claim (race, religion)

Benefits
Constitute pay 30
Offset of pension payments 14
Pension contribution to back pay award 14
Recoupment by state fund of pension payments 14

Bifurcation
Allows EEOC time to contact additional class members 103
Due to late identification of class members because of defendant's destruction of applications 103
Discovery, inappropriate 298
Expedition/economy served by 103, 251, 298, 302, 409
Improper in individual case 165
Jury trial right unaffected 140, 298
Liability and damages 103, 140, 165, 302, 409
Opposition 415
Prejudice to EEOC 415
Protects defendant from evidence relevant to punitive damages 165
Punitive damages issues 165, 251
Tactical considerations 195, 251

Burden of Proof SEE Pretext

Cause finding
Nonreviewability of reasonable cause determination 310 

Cause of action
EEOC independent of charging party’s 382
“Individual” (not “employee”) protected under Title VII §703 346

Non-disabled employees can state ADA claim
Pre-offer medical inquiries 155
Retaliation 339
Survives death of charging party 21, 54
White males can challenge racial and sexual harassment of blacks and females on basis that harassment destroyed close working relationships for all 166

Charges
ADEA cases may proceed without filing of 123, 134, 313
Additional claims not named 384
Additional victims not named 126, 356, 364
Agreements limiting/precluding filing of 11, 25 See also Arbitration
Deferral agency
Qualify even if only relief is conciliation 374
Disclosure
Disclosure to charging party of other charges against Respondent improper, even if charging party seeks it for his defense in a criminal case 22
To third party 29
Unnamed victims 424
Dismissal improper under work sharing agreement 143
Employer policy requiring use of internal procedure before (or instead of) filing charge 11, 25
Failure to exhaust administrative remedies
Unnotarized charge not 328
Filing period tolled
Employees had no way of knowing of discrimination 105
Employer affirmatively withheld information 105
Improper handling 110, 359, 364
Jurisdiction, state FEP charges
Notarization not required 290, 328
Letter naming parties and practices sufficient 374
LOD
Excluded because prejudice to EEOC outweighs probative value 222
Notarization of state charges 290, 328
Notice to employer of claims not in charge 384
Pattern and practice cases, no charge necessary 266
Relation back
Amended charge 384
Verified charge to letter 374
Scope 
Discrimination not stated in charge 126, 384, 424

Expand after litigation filed 283
Like/related claims 126, 380, 384
Retaliation needs no separate charge 380
Single filing rule applies only to private, multi-plaintiff actions 424
Victims not named in charge 11, 126, 283, 356, 424
Timeliness
If scope expanded because additional victims found, their claims are timely if original charge is timely 126
Validity of charge not notarized but valid under EEOC standards 290, 328 
Verification 
Charge relates back to letter 374
State law requires notarization, but EEOC does not 290, 328 
Work sharing agreement
Automatic filing with state FEP 105
Waiver of jurisdiction by state agency 364

Chilling effect of policy
Basis for introducing policy as evidence 4

Civil Rights Act of 1991 
Disparate treatment claims remain 413
Jurisdiction of court unchanged 413
Section 118 236
Section 1981a 291, 344, 345
Statute of limitations for Commission ADEA cases deleted 190, 312

Claimants
Claim forms in Title VII hiring case 307
Contact by defense attorney 321, 363
Contact by EEOC 321, 363
Identified after individual case filed 283
Identified late because evidence withheld 103
Not limited to individuals harmed within charge-filing period 199
Recovery available for non-charging party 357, 424

Claims administration
Costs of computerization of data 8
Individualized damages for class members 227
Other costs 8

Claims period
EEOC not limited by charge-filing period or by 2-year back pay period in identifying individuals entitled to relief 11, 105, 199

Class action
23(a) requirements met 217, 390
ADA claims may be asserted as class action 26
Business information on defendants 191
Claimants not limited to individuals harmed during charge-filing period or 2-year back pay period 11, 105, 199
Claims forms 307
Claims for compensatory and punitive damages do not make class certification inappropriate 390
Decertification of class 390
Discovery 187, 189, 191, 192, 193, 194, 195, 197, 198
EEO-1, use of 198
EEOC does not proceed under Rule 23 26, 186, 199, 302
Failure to hire (women) 330
Individual in nonclass action entitled to Teamsters presumption where pattern or practice of discrimination is found 390
Library resource 191
Like or related claims 3, 26
Pattern and practice, sexual harassment 266
Race hiring, training case study 388
Race promotion, class decertified 390
Seventh amendment rights for defendant 390
Sexual harassment constitutes pattern and practice claim 266
Scope of 3, 11, 126
Settlement considerations 186
Trial considerations 195

Collateral order SEE Appeal, interlocutory

Collateral estoppel
Conciliation agreement improper basis because it is non-judicial resolution 120
Doctrine of virtual representation 288
Pilot cases re: age 60 no-downbid policy 288

Collective Bargaining Agreements
Covers only contractual, not statutory, rights 231
Employer still obligated to accommodate (ADA) 206

Comparators
Discipline of sexual harassment complainants 365
Relevant to investigation of race discrimination claims 182
Treatment of people in other protected classes (and homosexuals) 397

Complaint
Models
ADA 185
ADEA 185
Equal Pay Act 185
Title VII 185
Title VII/EPA 185
Notice pleading 418
Short statement of facts 418

Computer files
Discovery
If files relevant, descriptions relevant 205, 412
Obtaining organization of, descriptions of 205, 412
Obtaining from defendant 189, 192, 193, 194, 205
Personnel data
Organization and analysis 192, 193, 194, 205, 412
Preferred formats 194
TRO to prevent destruction 82

Conciliation
Adequacy of 3, 26, 90, 104, 134, 391, 396, 428
Agreement 
Enforcement against injured party not covered by agreement violates public policy 120
No effect on admissibility of evidence of harassment in new individual's case 122
Resolution of individual charge does not bar suit on same topic based on another charge during same time period 120
Terms prohibit filing of charge, not lawsuit 120
Claims in reasonable cause determination; can litigate even if not in charge 384
Jurisdiction
Not prerequisite 91
Offer of employment not Ford offer 391
Offer rejected when defendant refused to settle class claims 90

Offer rejected when defendant failed to make counteroffer 104, 396, 428
Settlement discussion properly excluded from litigation 391
Unnecessary before intervention 302

Confidentiality See also Protective Order
Defendant waived when failed to conciliate 84
EEOC challenge to 52, 71, 84	
Enforcement efforts hampered by 84
Litigation/bad publicity insufficient bases for sealing record 84
Name of HIV-positive charging party 67
Party seeking bears burden of articulating harm 52
Presumption favors public access 52, 71, 84
State law re: confidentiality of HIV-status basis for protective order 67

Consolidation of lawsuits
If common facts/law prevail 41
Within court's discretion 41

Continuing violation 
Evidence of harassment before 300 day period admissible even if recovery period limited 121, 122, 364
Evidence of harassment before 300 day period admissible even if conciliation agreement resolved earlier charges 122
Pattern and practice cases 266
Recovery for individuals harmed prior to charge filing period and 2-year back pay period 11, 105, 199, 266, 364
Timeliness of claims (regardless of statute of limitations) 24, 122

Corporations
Financial information for punitive damages 40, 427
Locating business information 191
Proceed only through counsel 89
Stipulation to damages cap does not obviate need to produce financial information 427

Costs
Claims administration 8
Court has discretion to deny 88
Failure to appear at deposition 5, 94, 96
Failure to respond to discovery 5
Parties bear own 6, 254
Voluntary dismissal 6, 88

Customer preference
Not sufficient to establish BFOQ 28, 31, 188, 360

Damages
After acquired evidence
Certification of total disability treated as after acquired evidence 138, 174
Ambiguities in calculation resolved against employer 330
Back pay (see Back pay, above)
Calculation not excluded if underlying evidence provided to defendant in discovery 127
Cap not basis for refusing discovery on defendant's financial condition 40, 361, 427
Claims period not limited by charge-filing period or by 2-year back pay period 11, 105, 199, 364
Class estimate proper when defendant's records incomplete 127
Compensatory 163, 364
Available for violations before and continuing after passage of 1991 CRA 122
Mental condition not placed in controversy 130, 200, 301
Court has discretion in resolving ambiguities 330
Economic loss not needed for quid pro quo case 114
Estimate not excluded if underlying evidence provided to defendant in discovery 127
Fraudulent conveyance of assets by employer 309
Front pay for extended time period 274, 405
Jury or judge determines back pay 215
Mitigation SEE Mitigation 
Offer of lower-rank employment does not cut off damages 299
Pension recomputed 227
Prejudgment interest 171, 227
Punitive 
Available for violations before and continuing after passage of 1991 CRA 122, 291	
Award not set aside as matter of law 248
Bases 
Evidence of intentional discrimination 420
Title VII and § 1981a 364
Bifurcation to shield defendant from evidence re: punitives improper 165, 253
Cap not basis for denying discovery on defendant's financial status 40

Cap not related to egregiousness of behavior 169
Discovery of financial status  219, 253, 416, 427
Proceeds concurrently with discovery on liability 219, 253 
Failure to provide prompt remedial action 152, 344
Failure to object to reference to punitive damages is waiver of objection 429
Jury issue 420
Knowledge of other acts of harassment 152
Standard
"Extraordinarily egregious" not standard 169, 420
Participation of higher management or ratification not standard 345
Standard same as for other Civil Rights statutes 291
Reinstatement 2, 227, 405 
Sufficiency of evidence 202, 259, 344, 420, 429
Title VII and § 1981a 364

Daubert SEE Evidence

Death
Charging party's does not affect claims 21, 54
Class member’s does not affect claims 431

Default
Defendant's failure to respond to litigation 5 

Deferral Rights (state agency)
Automatic waiver of jurisdiction under work sharing agreement 143
Notarization required by state but charge taken by EEOC 290

Deliberative process privilege SEE Privilege

Department of Transportation
Regulations do not require that driving certification be denied to person who is morbidly obese 97

Deposition
30(b)(6) deposition 
Against EEOC improper 170
Against EEOC lawyers improper 310

Financial officer 219
Inappropriate method to review legitimacy of administrative investigation 310
Inappropriate method to seek statistical and legal bases for litigation 310
Charging party cannot be excluded 305
Conduct of, guidance 385
Contempt for refusal to appear 349
EEOC employees, opposed 95, 170
Failure to appear 5, 94, 96, 349
Financial officer 219
Guidance re: preparation and conduct of 385
Harassing, opposed 43, 160
Perpetuate testimony of ill charging party (pre-litigation) 23, 125
Preparing witnesses 385
State FEP investigator 162

Direct threat 12, 86, 97, 201

Disability  SEE ADA, Disability

Discharge
Fighting, provoked by use of racial epithets 80
Involuntary leave treated as 62

Disclosure 
Charges 
Disclosure to charging party re: other charges against Respondent for use in a criminal case  22
Disclosure to third party 29, 182
Prevented by sovereign immunity 29
Prevented by Title VII 29, 182
Prevented by deliberative process privilege 29
Evidence 
Failure to disclose (or late disclosure) is basis to exclude 102, 112, 124, 164, 354 (expert), 421
Investigation of sex harassment allegations 94
Witnesses 419, 421
Expert
Evidence considered 354
Prior testimony 354	
Report 354
Settlements
Public interest dictates 71, 84, 167

Discovery See types of documents at end of index
Adverse inference from invocation of Fifth Amendment 265
Affirmative defenses 416
Bifurcation would increase cost, inefficiency 298
Certifying effort to informally resolve dispute 10
Class actions 189, 192, 193, 194, 197, 198, 297
Child of charging party not appropriate focus 306
Comparables 297, 365
Computer information 189, 191, 192, 193
Confidential informants 394
Costs for failure to comply with 5, 94, 96
Court order re: sequence of 366
Disclosure, mandatory 416, 421 
Duty to comply/respond 5, 83 (Commission), 96 (defendant)
Duty to supplement 58, 164
Enforcing informal agreement re: sequence 366
Examination of witness who claims that her medical/mental condition prevents her from testifying 353
Financial status of defendant 40, 94, 219, 253, 267, 268, 361, 416
Discovery conducted concurrently with discovery on liability 219, 253
In camera review 394
Inadvertent disclosure of privileged documents 303
Limits on
Arbitration limits on basis for invalidating arbitration agreement 168
Inquiry into sexual behavior 1, 160
Inquiry into romantic relationship at prior employment 43
Privacy 1, 160
Mandatory disclosures, sufficiency of 416, 421
Notes of supervisor
Diary notes regarding charging party are not work product 135
Planning 194, 366
Privilege, inadvertent disclosure not waiver 303
Review of court order, mandamus inappropriate 361
Sanctions 
Costs for failure to comply 5, 94, 96
Exclusion proper for untimely identification of witnesses 58, 102, 164	
Sequence taken 366, 416
Sexual harassment
Inquiry into plaintiff's sexual behavior 1, 43

Remedial investigation conducted by attorney 94
Scope of 1, 160, 365
Substantial need to obtain notes of supervisor showing motivation 135
Tax records 407
Union activity of charging party 425
Witnesses, untimely identification 58, 102, 164
Witnesses, confidential, identity improperly sought 394

Discretion of district court
Abuse of
Award of back pay, front pay and injunction proper 133
Award of attorney's fees 155, 179
Award of costs 88
Denial of pre-judgment interest 171
Consolidation of lawsuits 41
Limited in mixed motive case re: award of fees to defendant 179

Dismissal
Failure to state a claim 110, 111
Fees award improper when EEOC dismissed as soon as realized lack of evidence 6, 87
Improper sanction for marking on evidence 98
Improper where jurisdiction waived under work sharing agreement 143
Inability to prove claims 6, 87
Voluntary-with prejudice 6, 87, 88
         -without prejudice 6

Disparate Impact 313, 314, 315, 316

Document destruction See also Applications, Records
Computer files 82
Failure to maintain applications basis for excluding contrary evidence regarding applicant pool 16
Failure to preserve applications 4, 16, 56, 103	
Presumption that destroyed documents would have supported EEOC case 28, 31 
TRO to enjoin destruction of 56, 81, 82

Due process clause
Jurisdiction over church does not violate 30

EEO-1
Analysis for class case 198

EEO-STAT
Avail and square programs 187

Educational requirement
Violates Title VII 324

Employer
Definition, number of employees SEE Jurisdiction
Engaged in commerce 147, 168
Individual liable in official capacity 406
Legislative history of definition 49
Nonprofit group 147
Sale of business 395

Employment Agency
Client liable under Title VII for directing discrimination 346
Jurisdiction regardless of number of employees 73

Enforcement authority
Arbitration agreement, even if binding on employee, does not limit EEOC 326, 369

Epithets
Racial, provocation for fighting 80

Equal Pay Act
Benefits constitute pay 30, 78
Constitutionality 30, 181
Good faith belief that wages did not violate FLSA 65
Head of household 30, 78
Provisions allowing individuals to sue states constitutional 181
Reducing salary of males improper 30, 78 
Religious basis for paying men more rejected 32
Statute of limitations, tolling 228
Tuition waiver constitutes pay 78

Equal protection clause
Opinion letter that Catholic nuns are exempt from coverage of discrimination statutes does not discriminate against Baptists 30

Equitable tolling
Employer concealed practices 105

Victim not penalized for error of state or federal agency 328
Victims had no knowledge of harm 105

Establishment clause
EPA jurisdiction over church/employer 30

Estoppel  See ADA, Judicial estoppel
Consistency of EEOC’s position with other federal agencies 239, 277, 278, 292

Ethical rules
Contacting former/current employees 77, 363 (check others)

Evidence	See also Federal Rules of Evidence, Discovery, Party Admissions
Admissions-party 4, 28, 59, 63, 222
Anecdotal
Properly considered in totality of evidence 156
Character
Discrimination against others 218
“Good” character of alleged harassers irrelevant 224
Lying, poor employment record inadmissible 414
Prior alcohol/drug usage 211, 213, 377, 414
Sexual activity/orientation prejudicial 210, 344, 345
Tax records 407
Sexual harassment allegation does not put charging party's character at issue 124, 344, 345
Contradictory testimony by company witnesses 152
Credibility improperly assessed 108, 207, 377
Daubert See Evidence-Expert, this entry
Destruction of 
Not shown when evidence marked on after defendant received clean copy 98
Presumption that destroyed documents would have supported plaintiff's case 28, 31
Exclusion of
Accident during time not seeking damages 245
Average ages 101
Damages calculation not excluded if underlying evidence provided to defendant in discovery 127
Discrimination against others 218
Employment policies 218
Evidence requiring testimony of EEOC attorney 112

Expert 354
Gender stereotypes 207
LOD 222
Investigation by EEOC 220
Order limited to certain evidence 225
Prejudicial 101, 112
Prior drug/alcohol use 211, 213, 377, 414
Self-serving statements of defense counsel 221 
Settlement discussions 209
Sexual activity 210, 344
Sexual behavior not related to workplace 209, 344
Tax records 407
Treatment of people in other protected categories 397
Unemployment compensation 212
Witnesses
Excluded from trial during testimony of others 214
Untimely identified 58
Expands scope of litigation to additional positions 101
Expert
Challenged under Daubert 130, 207, 223, 308
Methodology/scientific bases 130, 223, 308
Qualifications 130, 223
Excluded because not disclosed 102, 112, 124, 164
Failure to provide report/other information basis for exclusion 102, 354
Fees paid by parties for own expert 435
Gender stereotypes challenged under Daubert 207
Private investigator not expert on drug activities 377
Scope of testimony constrained by report and disclosure 354	
Sexual abuse/harassment, behavioral characteristics of victims 362
Sufficiency of policies, investigation not topic for expert testimony 224
Failure to retain applications basis for challenging contrary evidence regarding hiring/applicant pool 16
Failure to disclose 102, 112, 124, 164	
Hearsay 
Charging party's mannerisms 45
Declarant unidentified 4
Facts re: investigation 3
Facts re: company's state of mind 4, 5
HIV status 208
Letter from defense counsel to investigator 221
Self-serving statements 221

Identify victims 419
Impeachment
Collateral evidence not admissible 39
General bad acts not admissible to discredit witness 124
Jury decision
Credibility 207
Mental examination not needed to prove compensatory damages 130, 200
Motivation
Evidence re: hiring women into other positions not probative 378
Latitude granted because proof difficult 218
Nexus of statement to discriminatory behavior 203
Party admission 4, 28, 59, 63
Personal knowledge necessary 131
Prejudicial 45, 101, 208, 211, 377, 387
Prior alcohol/drug use inadmissible 211, 213, 377	
Prior inconsistent statement not admissible on collateral issue 39
Relevance
Accident not during time seeking damages irrelevant 245
Adequacy of EEOC’s investigation 220
Broadly defined, subpoena enforcement 205
Decision makers did not consider 45, 145
Discrimination against others 218, 422
Good character of alleged harassers 224
Harassment prior to conciliation agreement of another charge relevant 122
Health of defendant owner 356
Investigation of claim by defendant 220, 224
Notes in supervisor's diary relevant to retaliation 135
Prior acts of discrimination 152, 218, 421
Reflects motivation 4, 135
Reinstatement offer not received 112
Settlement discussions, excluded 209, 391
Statement by charging party after termination decision 45, 145
Statement by decision maker regarding possible future layoffs 203
Treatment of people in other protected groups 397
Union organizing 425
Sexual harassment  
Discovery, scope limited to protect charging parties 160

Harassment prior to conciliation agreement of another charge relevant 122
Harassment before 300 day period admissible 121
Knowledge of prior acts of harassment 152
Sexual orientation, inadmissible 210
Statistics 
Average age not probative re: individual claims of discrimination 101, 131
Properly considered as part of total evidence 156
Summary judgment, should be viewed in totality 118
Supervisor's diary notes 135
Tax records 407
Weighted age averages, misleading 101

Ex parte contacts
Content of EEOC message 321, 363
Defendant with charging party/claimants 83, 232, 298, 321, 363, 401, 409
EEOC with current and former employees 77, 159, 363
Management employees 304
Restrictions of trial court not basis for appeal 401

Exhaustion of remedies
Title VII does not require 61, 65, 66

Expert SEE also Evidence
Fees
Preparation time 435
Reduction 435

FLSA SEE also ADEA, Equal Pay Act
Section 17 as basis for recovering damages against Union under ADEA 431, 437

Federal Arbitration Act (FAA) SEE Arbitration

Federal Rules of Civil Procedure  SEE topic headings because this section only contains references to documents that refer to rule explicitly 
Rule 8    90, 418
Rule 9    61, 91
Rule 11   70, 183
Rule 12   3, 65, 280, 418, 419
12 (b) compared to Rule 56  3
Rule 16   75, 419

Rule 19   74, 323
Rule 23   26, 217, 302, 357
Rule 24   10, 74, 296, 302, 417
Rule 25   79
Rule 26   7, 10, 43, 58, 102, 164, 354, 416, 419, 421
Rule 27   23, 125
Rule 30	219, 310
Rule 35   55, 83, 130, 200, 300, 301
Rule 37   5, 102, 112, 124, 164
Rule 41   6, 88
Rule 42   41
Rule 49   70
Rule 51	343
Rule 53    8
Rule 56    3
Rule 59	205, 412, 429, 433 
Rule 60	412
Rule 65   38, 81
Rule 72	322

Federal Rules of Evidence
Rule 401	 253, 356, 359, 377, 378
Rule 402   101, 145, 356, 359
Rule 403	 101, 112, 208, 209, 210, 211, 212, 213, 218, 222,   308, 377, 378, 397, 425
Rule 404   124, 224, 344, 355, 414
Rule 408	 209, 391
Rule 412     1, 344, 355
Rule 602   131
Rule 608	 377, 414
Rule 611	 414
Rule 615	 214
Rule 702   130, 207, 223, 308
Rule 801     4, 59
Rule 803     4, 45
Rule 804     4

Fifth Amendment
Adverse inference from assertion 265
Assertion re: under reporting of tips does not preclude recovery 265, 364
Question designed to force charging party to invoke is prejudicial 208, 211 
Recovery not precluded by assertion re: mitigation 265, 364

Financial Status
Defendant's, discoverable 40, 94, 267, 268, 416

Forum non conveniens SEE Transfer; Venue

Free exercise clause
EPA jurisdiction over church does not violate 30

General duty clause (Occupational Safety & Health Act)
Not basis for rejecting applicants with likelihood of suffering future disabilities 383

Grievance procedure
EEOC need not recommend employer’s internal process 321

Harassment SEE Racial harassment, Sexual harassment
Basis for transfer of case 69

Hazen Paper
Disparate impact theory survives for ADEA cases 313, 314, 315, 316

Hicks SEE Pretext

Hiring
Applicant flow analysis 187, 241
Availability 187, 241
Disparate impact 235
Disparate treatment 235
Pretext for failure to hire 235

Immunity
Eleventh Amendment 181 

Impeachment
Collateral evidence not admissible 39

Independent contractor
Agency test 249, 372
Control over work primary factor 372
Darden test 249, 372

Injunction  See also Preliminary relief, TRO
Available 
Arbitration agreement, effect of 326

Discrimination proven, absent unusual circumstances 324, 347, 358, 382
Discrimination stopped, policy changed 382
Good faith defense proven 379
Policy in place 405
Standard of proof same for EEOC as for intervenor 382
Court’s discretion 347, 358
Expunge personnel file 382
Good faith defense not basis for denying 379
Harassment 250
Health insurance 2, 81
Hiring procedures 27
Intervenor may obtain 161
Lying at trial 382
Mandatory arbitration agreement 25, 38, 326
Policy defendant has refused to change 155, 358
Presumption favors EEOC 12, 250
Public interest, to vindicate 27, 167, 398
References for charging party 382
Retaliation 27, 250
Settlement terms contrary to public policy 167
Standard to receive 27, 155, 167, 250, 358, 382
Training 27, 382

Integrated enterprise SEE Jurisdiction 

Intent
Proof
 	Evidence of company's state of mind 5

Interest SEE Prejudgment Interest

Interlocutory appeal SEE Appeal

Intervention
Certification of Public Importance 
Court should not look behind 417
Delay or prejudice 417
EEOC's status as intervenor not basis for denying injunctive relief 161
EEOC intervention does not deny defendant’s 7th amendment right to trial 302
Permissive, standards 10, 74, 142, 242, 302, 417
Motion to Intervene
Example 10, 13, 142, 242, 302, 417

Public interest 302, 417
Separate EEOC suit on same claims not a bar 242
Subpoena enforcement action not appropriate vehicle for 296

Investigation, EEOC 
Challenge to (conducted in bad faith/vendetta) 50, 104, 170, 220, 359
Conduct of, irrelevant to trial de novo 170, 220, 359
Deposition re: conduct of 95, 162, 170
EEOC error in failing to investigate claims should not bar innocent charging party from asserting claims 384
Need not exhaust all alternative methods before obtaining injunction against terms of settlement decree preventing employees from assisting EEOC 167
Obstructed by third party agreement not to talk to EEOC 167
Scope broad 205

Investigation, Employer
In house process, EEOC need not recommend 321
Lawyer-performed investigation waives attorney-client privilege 94

Judgment
Conform to evidence 398

Judgment on the pleadings
Not proper method to challenge affirmative defenses 66

Judicial estoppel 138, 174, 216, 229, 277 (ADEA), 278, 331

Jurisdiction (including coverage and no. of employees)
180 day period before issuing right to sue not jurisdictional 153
Alter ego 57, 406
Church 
Exercise under EPA not unconstitutional 30
Conciliation
not jurisdictional prerequisite 91, 396
Corporation 57
State law determines 406
Employee status 
Leased/temporary employees 346
Retirees 230
School bus drivers 249

Employment agency, discrimination against own employees 73
Engaged in commerce 147
Former employee covered for retaliation 176
Improper handling of charge 110
Independent contractors 249, 372
Individual as "alter ego" of corporation 57, 406
Integrated enterprise 19, 94, 104, 269, 348
Law of case
dictates jurisdiction not reviewed again 32
Liable in official capacity 406
Notarization of state FEP charge 290
Number of Employees
Church, school and day care are one entity for ADA coverage 269
Employment agency needs no minimum number 73
Independent contractors 249, 372
Integrated enterprise 19, 94, 104, 269, 348
Part time 33, 49
Payroll method 33, 49, 71
Volunteers 18
Pre-determination settlement, enforcement of 129
Purchase of business 395
Retaliation, former employee covered 176
Single employer 104	
Subject matter, lack of 110, 111, 413
EEOC can proceed even if charging party withdrew individual lawsuit 413
Successor corporation 79, 92
Verification of state FEP charge
Notarization not required 290
Volunteers 18

Jury
7th amendment right not implicated 302, 390
ADEA; not available in suit under only Section 217 243
AIDS case 62
Bifurcation does not affect right to jury 140, 298
Decides back pay 215
FLSA 243
Instructions
ADEA Age need only be determining factor 119
ADEA Direct evidence need not be close in time to termination decision 119
Basis for new trial 429
Objections to 258, 343, 399, 429

Interview jurors 350
Questionnaire (additional) proposed because of media coverage, psychiatric testimony (HIV/AIDS issues) 62, 255
Unavailable under Section 217 (ADEA) 243

Leave
Involuntary, evidence of discrimination 63, 64
Involuntary, considered discharge 63, 64
Pregnancy, denial of 257

Letter of Determination SEE LOD

Liability See also Sexual harassment, liability 
Agency 13, 148, 271
Bifurcation of trial on liability and on damages 103, 140
Owner/president/management official 13, 16, 57, 276
Principal liable for agent employed in managerial capacity acting within scope of employment 420
Stipulation, example 35
Successor corporation 79, 92
Formed as subterfuge to avoid liability 79
Supervisor 17, 93, 148, 154, 271, 276, 311

Light duty
Age discriminatory policy 76
Retirement eligible not allowed 76

Local rules
Noncompliance as basis for denial of request 47

LOD
Exclude because prejudicial to EEOC 222

Mandamus
Extraordinary remedy 361
Improper method to review discovery order 361
Standard for 361

Mandatory Retirement SEE Retirement

Medical Examination 
Cardiovascular fitness test age-biased 316
Circumstances for granting 200
Conduct of
Exclude questions re: communications with EEOC 300

Receive questions, answers and instructions for mental examination 300
Tape recording 300
Opposing
Condition at time of rejection, not current health, is significant 55
Medical condition not in controversy in "regarded as" ADA case 55
Mental condition not at issue where nonpecuniary compensatory damages claim made 130, 200, 301
To establish whether witness is physically, mentally able to testify 353

Medical Insurance SEE ADA, Benefits, Preliminary Relief

"Meet and Confer" certification, Rule 26
Example 10
Failure basis for denying motion 394

Mental condition
Compensatory damages does not place in controversy 130, 200, 301
Long term disability plans 116, 117, 284
Obtain questions, answers and instructions for tests administered 300
Tape record examination 300

Mitigation
Age/illness reason for failure 44
Education for new career 324
Employer has burden of showing insufficiency 44
Fifth Amendment assertion re: tip reporting does not preclude recovery of back pay 265, 364
Jobs unavailable 131, 139, 274
Nonpecuniary damages, no duty to mitigate 263
Offset quarterly or annually rather than over entire backpay period 317
Reasonableness judged on circumstances 44, 139, 224
Retirement reasonable 131
Starting a business 318
Unconditional offer not received 131, 299

Mixed motive 179
Discretion to award attorneys' fees against plaintiff who established that discrimination was motivating factor is limited 179

Establishing discrimination was motivating factor proper basis for denying fees against plaintiff 179
Proportionality test for awarding attorneys' fees is contrary to Supreme Court precedent and Congressional intent 179

Motion to Dismiss
Compare to Motion for Summary judgment 3
Guidance on drafting, sample 386
Standard improperly applied 280

Motion to Strike
Guidance on drafting, sample 386
Proper way to challenge affirmative defenses 61, 66

Native Americans
Preferences based on tribal affiliation violate Title VII 329

Necessary party
Improper rule for allowing EEOC to participate in case 74
Union not, if only back pay requested 323

No beard policy SEE basis for discrimination (race, religion)
Constitutes religious discrimination 108

Opinion testimony SEE Evidence, expert

Party admissions  See also Evidence
Chilling effect, even if statement not true 4
Direct evidence 28, 63
Supervisor's statement re: reasons for discharge 59

Payroll method
Counting employees for jurisdiction 33

Pension
Lower benefits based on age 293
Offset against back pay 14
Recoupment by state fund 14

Policy
Chilling effect 4, 11
Failure to follow as evidence of discrimination 218
Liability established unless employer shows (by clear and convincing evidence) no harm 330

Victims not needed for prima facie case 108

Pre-determination settlement
Jurisdiction to enforce 129
Reasons to enforce 129

Preemption
ADEA contains "clear statement" of Congress' intent to preempt state law 136
ADEA preempts state law 136
Title VII determination does not preempt state Law Against Discrimination 151

Pregnancy See Sex
Fear of tort liability no basis for discharge 59
Non-pregnancy not BFOQ 59
Policy of denying leave of absence 257

Pre-judgment interest
Exceptions when unavailable 171
Presumptively available for back pay awards 171, 227

Preliminary Relief 
Enjoin destruction of computer files, documents 56, 81, 82
Enjoin enforcement of settlement 167
Enjoin racial harassment 250
Maintain health insurance 2, 81
Presumption favors EEOC 250
Reinstatement 2, 12
Retaliation 27, 250
TRO 2, 12, 25, 27, 38, 56, 81, 82, 129, 250 

Pre-offer medical inquiries (ADA)
Violate ADA 97

Pretext  118, 132, 150, 156, 163, 178, 218, 237, 343, 429
11th Circuit precedents on burdens of proof 163
Arbitrariness of reasons basis for finding 132
Failure to promote 218
Hicks 163, 178, 338, 343, 429 
Inference if supervisors’ testimony contradictory re: facts surrounding termination decision 150
Inference that one reason false because all others are refuted is reasonable, even if that one reason is not refuted 132, 343

Jury's rejection of proffered reason is sufficient to support finding of discrimination 178, 338
Pretext plus 178, 338

Pretrial order
Contents control future activity 112, 359

Prevailing party  See also Attorneys fees, Costs
Case law in 6th Circuit mixed 88

Privacy
BFOQ defense-male workers in female health club 13, 188
BFOQ defense--female tailors 379
BFOQ defense-referral of home health care workers 31, 188, 360 
Basis for protective order 9, 160	
Disclosure of investigation to third party violates 29 
Limit on scope of discovery in sexual harassment 1, 160 

Privilege 
Attorney-client
Common interests 42, 83
Communication for obtaining or giving legal advice 36
Contact with current/former employees 77, 159, 304, 321, 322, 436
Defendant cannot assert re: class members 297, 321
Defendants’ contact with class members 232
EEOC and charging party/claimant 42, 75, 83, 297, 321, 322
Ethical rules re: contacts with employees 77
Failure to assert earlier is waiver 36
Factual information not protected 416	
Intra-company communication to affirmative action manager 36
Investigation by attorney of sexual harassment  94
Self-critical analysis challenged by EEOC 297
Testimony of affirmative action officer not covered 36
Waiver 7, 36, 77, 94
Withdrawal from representation 402
Deliberative process 29, 162, 170, 303, 367
Prevents deposition on bases for cause/no cause determination 95, 367
Prevents disclosure of charge 29
State FEP investigation 162
Documents withheld must be identified 7

Fifth Amendment
Invocation by charging party 208, 211 
State reports privilege
Federal law against discrimination outweighs state protection for reports 37
Waiver 7, 36, 83, 94, 303
Work product
Improper assertion equivalent to waiver 7
Substantial need is basis for obtaining notes of supervisor; notes show motivation and are not available elsewhere 135
Supervisor's diary notes re: charging party 135

Promotion
Abolish job rather than promote 218
Blanket exclusion from because of record of substance abuse rehabilitation 239
Failure to 218

Protective Order
Contacting former and current employees 77, 159
EEOC investigator for deposition re: conduct of investigation 170
EEOC investigator in third party lawsuit 95
Harassment of charging party or witness as basis 43, 67, 68, 400
Identity of charging party with HIV 67, 68
Limits inquiry into witness' sex life 1, 43
Modify order in related case regarding evidence relevant to second case; more efficient to use same evidence 142
Presumption favors public access to information 52, 84
Privacy as basis 9, 67, 68, 84, 160
Public interest not served by naming charging party 68
Sequence of discovery 366
State law protects confidentiality of HIV-status 67
Trial witnesses 400
Untimely request basis for denial of 9, 416

Provocation
Racial epithets, defense to discharge for fighting 80

Punitive damages  See also Damages
Available for violations before and continuing after passage of 1991 CRA 122
Bifurcated trials, evidence should be presented at liability portion 251

Cap on damages not basis for denying discovery 40
Discovery of financial status of defendant 40, 94, 267
"Extraordinarily egregious" is improper standard 169
Failure to remedy harassment 152
Jury decision of appropriate award 169
Limitations on damages under CRA 1991 based on size of employer, not egregiousness of conduct 169
Omission from arbitration remedies basis for challenging agreement 168
Participation or ratification of discrimination by higher management not required 345
Prior harassment admissible to establish basis 122, 152

QUATTRO PRO 192

Racial Harassment 80, 150, 166, 384
Claims not in charge 384
Epithets, defense to fighting 80
Failure to remedy 150
Hostile environment can arise from one incident 150
One incident can be sufficient to state a claim 150
Subpoena enforcement 182
Sufficiency of evidence to avoid summary judgment 150
White male can complain of racial harassment on basis that it ruins close working relationships for all 166

Railway Labor Act
Title VII rights not eliminated by mandatory arbitration provision 100

Reconsideration of judgment
Court’s discretion 412
Legal error 205, 412, 434
Mistake, inadvertence, excusable neglect 412, 434

Records SEE Applications, Document destruction

Recusal
Court properly denied 111

Referrals	
Discriminatory  31, 105

Reinstatement
Evidence of offer excluded 112
Offer not received, no bar to recovery 112

Rejection of
Fear of retaliation 63, 64
Retaliation fear basis for rejecting 63, 64

Releases  SEE Waiver

Religion
Accommodation
Beard 108
Days off for holiday 133
Difference in policy re: accommodating management and non-management employees 108
Undue hardship 133, 256
Discovery, scope of 256
Exemption of Catholic nuns from coverage of employment discrimination laws not discrimination against Baptists 30
Failure to grant tenure to nun in Canon Law Dept. 9
No beard policy 108
Policy revision during litigation indicates policy not mandated by religion 32
Reasonable accommodation 108, 256

Representation by counsel 89

Res judicata
Conciliation agreement improper basis because it is non-judicial resolution 120
Doctrine of virtual representation does not bar EEOC from relitigating pilot age-60 no downbid cases against employer not party to first suit 288 

Retaliation
Basis for rejecting reinstatement 63, 64, 274
Behavior need not be ultimate employment action 325, 327, 339
Charge not necessary (second) 166, 380
Claim stated even if charge says retaliation for filing charges and retaliation actually occurs for protected activity 166
Coverage (under ADA) for nondisabled complainant 339
Discharge for cooperating with EEOC 274
Discharge for lying to EEOC 139
Discharge for rejecting mandatory arbitration agreement 25, 38
Failure to replace lost work/clients 411
Former employee covered 176

Good faith belief that conduct complained of was illegal 115, 166, 254, 327
Notes of supervisor in diary relevant 135
Procedure denying right to file charge 11
Reasonable individual would believe complaining of same sex harassment is protected activity 115, 254 
Threats of adverse employment action 325, 339
Underlying allegation need not violate Title VII 115, 166, 254, 327

Retirement 
Less favorable benefits for early retirement 203
Less favorable benefits for disabled 230
Mandatory 
Company directors 134
Police officers 227
Pilots 288
Mandatory policy can be challenged even if no charge filed 134
Orderliness of succession and planning compensation not reasonable factor other than age supporting mandatory retirement 134

Right to sue
180 day wait before issuing not jurisdictional 153, 155
EEOC regulation allows for early issuance 153, 155
EEOC need not wait 180 days before issuing 153, 155

Ripeness 116, 117

Rule 11
Model brief 183 (includes affidavits)
Standard for fee awards against plaintiff 70

Rule 35 SEE Medical Examination, Federal Rules of Civil Procedure

Sanctions See also Attorney's fees
Appearance without local settlement authority 75
Asserting privilege after magistrate ruled it was waived 94
Bench warrant 349
Contempt 349
Excluding evidence/witness 58, 102, 124
Rule 11 70, 183 (model brief; includes affidavits)
Rule 16 75

Sealing record SEE Confidentiality

Settlement 
Class action 186
Confidential (EEOC opposed) 71, 84
Contract principles apply 71, 182
Discussions not admissible as evidence 209, 391
Enforcement 
Meeting of the minds 71
Oral settlement 146
Predetermination settlement 129
Void as against public policy 167
Exclude evidence of discussions 391
Local authority needed to appear at conference 75
Offer, determined by timing and existence of claim 391
Resolution of DOL charges not waiver of Title VII claims 330

Seventh Amendment
Compensatory and punitive damages claims do not deny defendant right 390
Defendant not entitled to same jury for liability and damages 298
Intervention by EEOC does not deny defendant’s right to jury trial 302

Sex discrimination
BFOQ 13, 31, 59, 188, 360, 379, 493
Claims period not limited to 2-year back pay or charge-filing period 105, 199
Customer preference 379, 403
Denial of tenure 9, 156
Discharge
Pregnancy 59, 60
Hire, failure to
Men  13, 360, 403
Statistical evidence 28, 187, 241, 330
Women 4, 28, 241, 252, 330, 378, 379, 403, 408, 426
Failure to refer 31, 360, 403
Hiring of women in other positions no defense 378
Lay BFOQ defense based on customer preference 379
Pregnancy 
Discharge 59, 60
Fear of injury while working not basis for termination 59
Policy denying leave 257
Promote, failure to
Punitive damages available 291

Sex plus
Proof no different than sex alone in absence of policy based on both sex and other attribute 156

Sexual harassment
Abuse of delegated authority 93, 114, 148
Agency theory 114, 148
Restatement section 219(2)(d) applies 114 
Restatement section 166 inapplicable 114 
Apparent authority 109, 148
But for his/her sex 106, 279, 280, 325
Character of charging party not at issue 124, 224, 344, 355
Co-worker 1, 3, 115, 279, 280	
Continuing violation theory 121, 122
Cursing SEE Foul language, below
Customer 411
Defenses
Charging party welcomed harassment 224, 344, 380
Equally bad treatment of men and women 172
Investigation by defendant sufficient 220, 224
Jokes 144, 152
Resignation by complainant precluded investigation/remedy 380
Delay in investigation 411
Evidence
Behavioral characteristics of victims 362
Character of charging party not issue 124, 224, 344, 355
Difficulty in performing job 152
EEOC 1995 guidelines should be excluded because never issued 223
Expert re: general patterns of harassment, behavioral characteristics of victims 362
Expert whose theory not supported by psychological community should be excluded 223
Failure to provide prompt remedial action 94, 152, 154, 365, 380
Gender stereotypes, basis for harassment 281
General "bad acts" not admissible to discredit charging party 124, 224, 344, 355
Harassment welcome 224
Harassment prior to charge filing period admissible even if recovery period limited 121
Hostile environment, sufficiency of 202, 279, 325, 380, 411

Knowledge of other acts of harassment 152, 325, 365
Men not treated differently 325
Other women not harassed 225
Other women not offended 225
Plaintiff's sexual behavior 1
Series of acts rather than one does not change analysis 154
Threats alone sufficient 311, 325
Foul language
Charging party's use not evidence of welcomeness 144
Harassment equally of men and women defense 172
Hostile environment 109, 114, 148, 152, 202, 224, 271, 279, 325, 380
Decline in performance unnecessary 152
Increased difficulty to perform job sufficient to establish 152 
Physical contact unnecessary to establish 152
Threats to establish 152, 202, 311
Investigation 
Attorney constitutes waiver of privilege 94
Delay 411
Joking no defense 144, 152
Liability
Delay in investigation 411
Notice to employer unnecessary 93, 114, 154, 271, 276, 311
Series of acts rather than one does not change analysis 154
Theories of 17, 93, 109, 114, 148, 154, 271, 276, 311, 347
Male challenge to harassment of women on basis that harassment ruined close working relationships for all 166
Male-on-male 106, 115, 254, 279, 280, 281
Heterosexual men 281
Notice
Supervisory acts 93, 114, 154, 271, 276, 347, 380
Pattern and practice claims, applicable 266 
Policy against, no defense 266
Quid pro quo 114, 202
Economic loss not needed after CRA 114
Threats alone actionable 114, 311
Remedial actions 94, 154, 225, 365, 380, 411
Failure may constitute constructive discharge 380
Promptness 225 (in other complaints), 411
Retaliation 202, 254, 325, 380, 411

Reasonable individual would believe complaints of same sex harassment protected activity 115, 215 
Same sex 106, 115, 254, 279, 280
Sexual attraction unnecessary to state claim 281
Stereotypes, harassment based on 281
Supervisor, conduct sufficient to establish employer liability 17, 93, 114, 115, 148, 154, 202, 254, 271, 276, 311, 343
Victims not named in charge 126
Welcomeness 
Charging party welcomed 224, 344, 380
Foul language by charging party not evidence of 144   

Sovereign immunity
Bars claim of improper handling of charge 110
Bars enforcement of third party subpoena against EEOC 22, 29
Prevents disclosure of charge 29

Standing SEE Cause of Action

Statistics
Availability/applicant flow 187, 196, 197, 252, 308
EEO-STAT Square and Avail programs 187
Hiring cases, tests 187, 196, 241, 252
Labor market availability 
Expert challenged because analysis flawed 308
Proof 196, 197, 241, 252
Weighted age averages, exclusion 101

Statute of limitations
ADEA
No limitations on ADEA after CRA 1991  24, 190, 312, 313, 410
ADCAA reflects Congress intended no statute of limitations 24, 190, 312
Equal Pay Act 228
Equitable tolling
Defendants delay in EEOC investigation 228
Limits recovery but not liability period 199
Pattern and practice cases, no charge filing requirement 266
Retroactivity 61  
State statutes-not applicable to Title VII 24
Title VII has none 141
Tolling 228, 410
Because of conciliation 410

Because of need for subpoena enforcement 228

Stay 
For further EEOC investigation to identify class 283
Pending appeal 46
Pending mandamus 361

Stereotypes
Male harassed for failure to meet 281

Subpoena
Against EEOC 
Administrative file sought 240
Sovereign immunity bars 22, 29
Third party to suit 240
Child of charging party not appropriate subject 306
Criminal defendant seeks charges against employer 22
Computerized files, descriptions of 205, 412
EEOC Enforcement
Computerized files, description 205, 412
Confidentiality protected by statutory prohibition on disclosure 182
Defense on merits not basis for challenging 123, 184 
Disclosure of ongoing internal investigation protected against by statute 182
Exhaustion of remedies 182, 184
Fees for witness interviews during investigation 289
Merits not properly raised in subpoena enforcement action 123, 184
Model briefs 184 (with affidavits)
Return of documents to employer 289
Scope of authority broad 184, 289
Untimeliness of ADEA charge not basis for challenging 123
State "reports privilege" preempted by federal law 36
Title VII prevents EEOC disclosure of information 22
Intervention by charging parties inappropriate in subpoena enforcement action 296

Successor company See also Integrated enterprise, Jurisdiction, Liability
Subterfuge to avoid liability 79

Summary Judgment
Compared to Motion to Dismiss 3

Contradictory statements re: facts surrounding termination 150, 343
Discovery to establish question of fact 235
Evidence should be viewed in totality 118, 156
Hicks
Rejection of defendant’s proffered reasons allows claim to proceed to trial 338, 343
Improper in sexual harassment cases because determination involves credibility 144
Standard of Review 3
Sufficiency of evidence 150, 180, 235, 340, 343

Supervisor
Liability for harassment 17, 93, 114, 115, 148, 154, 202, 254, 271, 276, 311

Temporary Restraining Order (TRO)
Enjoin arbitration agreement 38
Enjoin harassment 250
Enjoin records destruction 56, 81, 82	
Maintain health insurance 2, 81
Presumption favors EEOC 250
Reinstatement 2, 12
Retaliation 27, 250
Showing required to obtain 12, 25, 81

Tenure
Denial based on gender 9, 156

Timeliness
180 day wait before Right to Sue issued not jurisdictional 153
Additional victims, claims are timely if original charge is timely 126
Claimants need not wait 180 days from date charge filed before filing suit 153
Claims of individuals injured prior to charge filing period or 2-year back pay period 199 
300-day period 105
Charge filing period is 300 days for charge filed automatically with state agency under work sharing agreement 105
EEOC certification of inability to investigate waives any requirement (if it exists) that claimant wait 180 days before filing suit 153

Failure to file ADEA lawsuit within 90 days when no notice that EEOC ending processing 233

Tolling SEE Equitable Tolling

Training
Injunction requiring 27

Transfer
Inconvenience to corporate witnesses not relevant 69, 226
Protect charging party from harassment 69
Standards for 69, 226

Union
Cannot waive individual's right to statutory remedies 107
CBA does not automatically take precedence over ADA 113
Duty to accommodate under ADA 113
Duty to negotiate ADA reasonable accommodation 113
Liability for damages under ADEA 431, 437, 438
Necessary party 323
Organizing activity inadmissible in Title VII cases 425

Venue
Corporate headquarters location improper bases 99, 226
Proper where discrimination occurred 99, 226
Title VII has own provision 99

Voir Dire
AIDS case, special questionnaire sought 62
Media coverage 62
Psychiatric treatment 62
Questionnaire to seek additional jury information because of complexity of issues and media coverage 62

Volunteers
Counted as employees to establish jurisdiction 18

Waiver
Consideration 15
Employee's role in fashioning terms of waiver 15
Employer's failure to disclose facts 15 (ADEA)
Failure to return consideration not ratification 336
Future claims 20
Knowing and voluntary 15 (ADEA), 20 (Title VII/ADEA), 38, 330
Privilege SEE Privilege

Prospective waiver invalid 20, 38, 157, 294, 333, 336 
Ratification does not result merely from failure to return consideration 336 
Settlement of DOL claim not waiver of Title VII claims 330
Time for consideration (ADEA) 15

Withdrawal as counsel
Opposition 89, 402

Witnesses
Amend list for "good cause" 164
Confidential informants’ identity sought 394
Disclosure in scheduling order 419
Ex parte contact 77, 83, 159, 199, 232, 298, 304, 321, 322, 363, 401, 409, 436
Excluded because untimely identified  58, 102, 164, 419, 421
Harassment of 400
Medical condition precludes testifying 353
Personal knowledge necessary 131
Prepare for deposition, trial 385
Private investigator not expert on drug activities 377

Work product doctrine
Bases for asserting (EEOC) 83
Diary notes of supervisor do not qualify 135

Worksharing Agreement
Charge filing period 300 days when charge filed automatically with state FEP under 105
Deferral rights automatically waived 143

	TYPES OF DOCUMENTS
(last document included is 438)

Certification of Efforts to Informally Resolve Discovery 7

Claims forms in class actions
307 (Title VII, failure to hire, promote; grocery store)

Document Production
147 (is defendant employer engaged in commerce)
189 (ADEA age layoff; database documentation)
192 (ADEA age layoff; database documentation)
193 (general; computer tapes and diskettes)
194 (planning discovery)
261 (Title VII national origin failure to hire; organization of plant, job descriptions, general work information)

Findings of Fact and Conclusions of Law
60 (Title VII pregnancy discharge)
241 (Title VII class failure to hire (women), statistical evidence)
320 (Title VII class failure to hire (women), proposed conclusion of law ONLY on increasing backpay award to compensate for increased taxes owed)
330 (Title VII class failure to hire (women))
352 (Title VII sex, sexual harassment)

Interrogatories
147 (is defendant employer engaged in commerce)
189 (ADEA age layoff; database documentation)
192 (ADEA age layoff; database documentation)
193 (general; computer tapes and diskettes)
194 (planning discovery)
260 (Title VII class--organization of plant, qualifications, identity of employees, job descriptions, etc.)
262 (Title VII national origin failure to hire--job titles, descriptions, hiring, procedures/recruitment, experts, affirmative defenses)
268 (samples re: financial data, case cites re: right to obtain)
309 (seeking evidence of financial assets, insurance)

Juror Questionnaire 62, 255

Jury Instructions, Objections to 258, 343, 399, 429

MOTIONS

for Certification of Expedited Appeal 48

to Compel (and Oppositions)
219 (Opposition to motion to quash deposition of financial officer)
256 (responses/information re: religious accommodation)
297	(ADEA class; Defendant failed to identify class members, asserted inappropriate privileges)
303	(Seeks return of inadvertently disclosed privileged documents)
353  (independent medical examination)
365	(responses re: employees at other facilities, other sexual harassment lawsuits, internal investigation, fraud by harasser, comparators)
394	(opposition; defendant failed to “meet & confer,” defendant improperly sought identify of confidential informants, in camera inspection not useful) 
416	(bases for affirmative defenses, financial information, personnel file of alleged harasser)
427	(financial information of employer)

to Dismiss (AND Opposition to)
226  (forum non conveniens)
413	(opposition; jurisdiction when charging party withdrew individual suit)
419	(opposition; dismiss members of class)

to Exclude Experts
308 (Title VII, class, sex, failure to hire)
354 (Title VII, individual, sex, failure to hire)
377 (exclude expert re: drug trafficking)

for Expedited Trial 
128 (charging party has AIDS; sets forth medical condition and basis for expediting trial)

to Intervene
9 (Title VII sex)
10 (ADEA/Title VII sex)
142 (ADEA class case)
242 (Sex discrimination/sex harassment, class (Mitsubishi))
302 (Title VII sex, class, failure to promote (Home Depot))
417 (Title VII sexual harassment, retaliation)

In Limine (and Opposition)
4 (opposition to defendant's effort to exclude statements that women were not hired because plaintiff cannot identify the speakers except as "receptionist" or "employee;" also responds to defendant’s challenge that same information should not be admitted as showing company’s “state of mind” re: hiring women)
16 (because of defendant's record keeping violation, court should exclude evidence of other males who applied)
39 (not motion in limine, but discusses EEOC’s reasoning for arguing to exclude evidence of outside work relationship as irrelevant)
45 (opposition to defendant’s effort to include evidence that a co-worker was intimidated by charging party)
58 (to exclude testimony of witnesses untimely identified)
124 (opposition to defendant’s effort to include evidence of "bad acts" (forgery) by charging party)
207	(Sex harassment, oppose exclusion of EEOC’s gender stereotype expert)
208	(opposition; AIDS-exclude testimony re: infecting others)
209	(opposition; AIDS-exclude consent to medical exam during settlement negotiations)
210 (AIDS-exclude evidence of sexual practices)
211 (exclude prior drug usage)
212 (exclude unemployment compensation)
213 (exclude prior alcohol use)
214 (exclude witnesses under Fed.R.Evid. 615)
215	(seeks advance determination about evidence of back pay/mitigation)
218 (opposing exclusion of complaints of non-charging parties)
220 (exclude evidence of conduct of investigation)
221 (exclude letter from defense attorney to investigator)
222 (exclude LOD)
223 (exclude defendant’s industrial psychologist expert)
224	(exclude testimony of witness re: defendant’s policies/investigation were “good;” there was no hostile environment)
225 (exclude testimony of women not harassed)
245	(exclude evidence of epileptic seizure and accident occurring after relevant time period)
253 (opposing exclusion of evidence of defendant’s net worth)
259 (concerning punitive damages)

263 (re: charging party’s sexual activity (HIV))
265 (opposition; strike class members who asserted 5th amendment re: reporting tip income)
354	(expert testimony)
355	(Fed.R.Evid. 412, information re: sexual history)
356	(health of defendant owner)
359	(EEOC investigation)
377	(expert re: drug trafficking)
378	(Title VII, historical hiring of women)
379	(BFOQ defense)
391	(settlement discussions)
397	(opposition; defendant treated other employees, such as homosexuals, well)
414	(bad character)
421	(evidence disclosed at end of discovery in violation of Rule 26)
422	(opposition; exclude prior discrimination claim)
424	(opposition; exclude additional claimants)
425	(charges filed with NLRB)

to Quash
240 (subpoena of director in non-EEOC lawsuit)

to Strike
47 (strike answer that seeks attorney's fees under EAJA)
50 (strike unsupported allegations that lawsuit is vendetta by investigator)
61, 65, 91 (strike defenses insufficient as a matter of law)
66 (Reply; EEOC’s motion to strike defenses insufficient as a matter of law)
164 (strike witness list)

for Summary Judgment (and Opposition to)

227 (benefits/ADEA class case)
235 (opposition; Title VII hiring, statistics, impact and treatment)
236 (opposition; mandatory arbitration)
  	239 (ADA blanket policy re: substance abuse)
244 (opposition; ADA failure to hire, epileptic, direct threat)
247 (ADA opposition; neck and back injury, need for individualized assessment)
249 (opposition; ADEA mandatory age 70 retirement, independent contractor)

252 (Title VII sex/hiring; statistics)
266	(opposition; Title VII, class, sexual harassment (quid pro quo and hostile environment, pattern or practice)
343	(opposition; Title VII sex, individual, hiring)
348	(both; Title VII jurisdiction, integrated enterprise)
376  (opposition; ADA record of/”regarded as” failure to accommodate)
380	(opposition; Title VII sexual harassment, hostile environment)
381	(opposition; ADA reasonable accommodation)
383	(ADA failure to hire (carpal tunnel), pre-employment predictive test, direct threat)
384	(opposition; Title VII race, retaliation, harassment, discharge)
393	(opposition; ADA failure to hire, “regarded as,” asymptomatic back condition, direct threat)
395	(Title VII employer status)
396	(Title VII condition precedent)
403	(ADEA/Title VII race, sex, national origin; failure to hire, failure to refer)
406	(opposition; Title VII race, employer status)
410	(ADEA discharge)
411	(opposition; Title VII sexual harassment by customer)
420	(opposition; Title VII punitive damages claims)
423	(ADA failure to accommodate)
434	(ADA monocular vision; failure to accommodate, discharge)

Pretrial Order
238  (ADEA RIF/discharge)
246  (ADA failure to re-hire)
360	(ADEA/Title VII (race, sex, national origin); failure to hire)
408	(Title VII (sex) failure to hire, pattern and practice)
426	(Title VII sex discrimination)
428	(Title VII sex discrimination, retaliation; conditions precedent, conciliation)
430	(ADA failure to hire, “regarded as”, blanket exclusionary policy)
431	(ADEA early retirement plan, liability of union for CBA)

Protective Order

1	(discovery re: sexual behavior outside work except with harasser)
22	(to avoid disclosure of charges against employer who has filed criminal charges (murder) against doctor who complained of national origin discrimination)
43	(to prevent defendant from inquiring into consensual sexual relationship supervisor had with employee at previous job, allegedly to use as basis for termination)
67, 68  (to protect identity of HIV-positive individual)
77	(opposition to defendant’s efforts to keep EEOC from contacting former and current employees)
95	(investigator subpoenaed in third party case; to prevent inquiry into topics covered by deliberative process, including bases for cause/no cause determination)
142	(to modify protective order in related case which prohibits disclosure of discovery in that case to anyone)
160	(to limit scope of discovery to protect witness in deposition about sexual harassment claims)
162  (to prevent defendant from deposing investigator)
170	(to prevent 30(b)(6) deposition of EEOC regarding internal communications during investigation/cause decision) 
300  (to restrict parameters of Rule 35 examination)
301  (to prevent Rule 35 examination)
304  (to prevent Rule 35 examination)
306	(to prevent abuse of subpoena; defendant seeks personal information about child of litigants, who has no role in case)
310	(to prevent 30(b)(6) of Commission lawyers concerning their legal and statistical analysis of case)
363	(To prevent EEOC from communicating with potential claimants)
366  (sequence of discovery)
400  (to prevent defendant from contacting/harassing witnesses)
407	(to prevent subpoena of tax/medical information of charging party and her daughter)

Statement of disputed facts
34   (ADEA numerous defendants and claims)
104  (ADA discharge AIDS)
343	(Title VII sex (female), failure to promote, retaliatory discharge)
348	(Title VII jurisdiction, integrated enterprise)
376	(ADA record of, “regarded as,” reasonable accommodation)

380	(Title VII sexual harassment, hostile environment)
381	(ADA reasonable accommodation)
384	(Title VII race, retaliation, harassment and discharge)
395	(employer status in sale of business)
410	(ADEA discharge)
434	(ADA monocular vision, failure to accommodate, discharge)

Stipulation of Liability on the Merits
35 (ADEA) 

Temporary Restraining Orders/Injunction

2 	(ADA, seeking reinstatement of position and health benefits)
12	(AIDS, retain job and maintain benefits)
25	(Title VII, prevent employees from being forced to wait to file EEOC charges until after internal mandatory arbitration)
27	(Title VII, after trial; injunction to vindicate public interest, to ensure fair hiring, to require training and to protect employees from retaliation)
38	(to enjoin defendant from enforcing mandatory arbitration agreement)
56, 81, 82 (to stop records destruction by referral agency; 82 includes computer files)
129	(to restrain defendant union from violating pre-determination resolution)
250	(eliminate racially hostile workplace)

Trial Briefs
13	(Sex discrimination failure to hire men; BFOQ defense)
28	(Sex discrimination failure to hire women)
59	(Sex pregnancy discrimination; BFOQ defense)
64	(Post trial; sex discrimination Whether involuntary pregnancy leave violates Title VII)
78	(EPA paying male teachers more in wages and benefits)
131	(ADEA discharge)
163	(ADEA discharge, pretext)
237	(ADEA layoff, damages)
241	(Title VII sex discrimination, failure to hire women, statistical evidence, calculation of relief)
257	(Title VII pregnancy discharge, policy)
311	(Title VII sexual harassment, class (quid pro quo, hostile environment)
330	(Title VII failure to hire, statistics, damages calculations)

357	(Title VII sex discrimination, scope of recovery to non-charging parties)
358	(Title VII injunctive relief)
411	(Title VII sexual harassment by customer)

TRAINING/EDUCATIONAL

83	Relationship between EEOC and charging parties and other claimants regarding litigation matters
159	Memorandum on ex parte contacts with current and former employees (1995, 1997) (See number 436)
183	Model Rule 11 sanctions opposition 
184	Model subpoena enforcement brief
185	Model complaints
186	Class action settlements
187	Availability and applicant analyses using EEOSTAT
188	Case law on BFOQ established by privacy concerns
190	Legal discussion on affect of 1991 CRA on ADEA statute of limitations
191	Resource guide to library materials supporting class case research
192	Obtaining, processing and analyzing computerized data
194	Selected issues in planning data discovery
195	Considerations in the trial of class actions
196	Statistical evidence
197	Creating and using databases in EEO litigation
198	EEOC survey data and its use in class action cases
199	Recovery in Title VII and ADA cases for acts of discrimination occurring prior to the charge filing period
200	Nonpecuniary compensatory damages and Federal Rule of Civil Procedure 35 mental examinations
267	Understanding and using financial data: an Ernst & Young guide for attorneys; Investigative accounting, techniques and procedures for determining the reality behind the financial statements
317	Research by legal intern on offset of interim earnings by quarterly or yearly periods rather than cumulatively over entire backpay period
318	Research by legal intern on starting your own business as meeting backpay mitigation requirement
319	Research by legal intern on compounding of interest on backpay

320	Expert report on method used in increasing backpay awards to compensate for additional taxes owed by claimants as a result of receiving entire backpay award in year of judgment
367	Deliberative process privilege
385	Preparing deposition witnesses
386	Pretrial Motions
387	Writing
388	Discussion for nonlawyers of federal employment discrimination laws & EEOC enforcement
432  Bankruptcy materials
436	Memorandum to Systemic Litigation Attorneys re: ex parte contacts with employees (former, current; managerial, non) See number 159