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