|
From
May 2002
Abbreviated Contents
1. The Law
Who Is
Covered?
Acts Prohibited
Terms and Conditions of Employment
Employer Retaliation
Employer Defenses
Recent Developments
2. Client
Intake and Investigation of Claims
Initial
Client Interview
Retainer Agreements
3.
Administrative Prerequisites to Filing Suit
Filing
Charge:
Charge-filing Deadlines
Starting Point of Filing Period
Actions After Clock Starts
Form and Contents of Charge
Filing Charge
Dealing
with EEOC:
Charge Prioritization System of EEOC
EEOC’s Enforcement Plans
Initial Charge Processing
Charge Determinations by EEOC
Prerequisites to Filing Lawsuit
Checklists
4.
Discovery
Proving a
Prima Facie Case
Pretext
Document
Requests:
Plaintiff’s Checklist
Defendant’s Checklist
6 Requests for Production of Documents
Interrogatories:
Generally
Plaintiff’s Approach
Plaintiff’s Checklist
Expert Witness Checklist
Defendant’s Checklist
Interrogatories – Termination of Employee
Interrogatories – Failure to Hire
Interrogatories – Failure to Promote
Interrogatories – Demotion/ Termination
Interrogatories – To Defendant’s Experts
Plaintiff’s Answers to Defendant’s Interrogatories – Termination/
Retaliation – Intentional and Reckless
Interrogatories – State Human Rights Commission – Demotion/ Failure to
Promote
Interrogatories – Termination – Discriminatory Comments – State Human Rights
Commission
Requests to
Admit:
Plaintiff Checklist
Plaintiff’s Requests for Admissions
Depositions:
Objective of Deposition
Who to Depose
Plaintiff’s Pre-deposition Checklist
Plaintiff’s Deposition Preparation
Expert
Witnesses:
Statistical
Damages
Vocational
Psychotherapists
5. Proving
Age Discrimination
Disparate
Treatment:
ADEA Prohibitions
"Employer" Defined
Burden of Persuasion
Protected Class
Disparate Treatment vs. Disparate Impact
Types of Direct Evidence
McDonnell
Douglas:
Indirect Proof Method
Prima Facie Case
Employer’s Rebuttal
Pretext
Alternatives to McDonnell Douglas
How Price Waterhouse Mixed Motive Analysis is Being Applied to Age
Cases
Types of Evidence
Disparate
Impact:
Hazen Paper vs. Biggins
Status of Theory in the Circuits
Using Disparate Impact Model in Disparate Treatment Cases
Statistical
Evidence: Age-break Analysis in Disparate Impact Cases
Non-parametric Tests
Regression Analysis
Disparate Impact Cases
6. Remedies
Available Under ADEA
Equitable
Remedies:
Injunctions
Reinstatement
Front Pay
Legal
Remedies:
Backpay
Liquidated Damages
Compensatory Damages
Punitive Damages
Interest
Costs
7. Summary
Judgment
Procedural
Principles:
Standards
Rules
Timing of Motion
Minimum Time and Notice for Plaintiff’s Response
Insist on Discovery Crucial to Opposing Motion
Materials Supporting Opposition
Plaintiff Strategies
Methods of
Proof and Summary Judgment:
Overview of Methods of Proving Age Discrimination
Plaintiff’s Burden to Make Prima Facie Case
Prima Facie Analysis in RIF Cases
Alternative Methods of Establishing Prima Facie Case
Presenting
Sufficient Pretext Evidence:
Plaintiff’s Objectives
Circuit-by-circuit Legal Standards
Challenging Veracity of Employer’s Reasons
Discriminatory Comments
Comparable Qualifications
Statistical Evidence
Same Bad Actor
Challenging Same Actor Inference
8. How Your
Opponent May Try to Limit Your Evidence
Excluding
Expert Testimony
Excluding Testimony of Age-related Statements
Damages Issues
Other Motions in Limine
9. Using
Experts
Choosing
Experts
Expert Depositions
Experts at Trial
Legal Issues
10. Trial
Strategies:
Motions in Limine
Using Expert Witnesses
Avoiding Expert Witness Challenges Before Trial
Using Expert Testimony on Statistics
Proving
Damages:
ADEA Damages Limits
Evaluating Damages
Proving Backpay
Proof Issues Concerning Reinstatement
Proving Front Pay
Proving Willfulness
Juries:
Mock Juries
Juror Questionnaires
Dealing with Juror Biases
Plaintiff’s Proposed Voir Dire
Jury
Instructions:
Age Discrimination
Special Interrogatories
Retaliation
Harassment
Damages
Verdict Forms
11.
Representing Multiple Plaintiffs
Advantages
and Disadvantages
Identifying Potential Plaintiffs
Cases Combining ADEA and Other Claims
ADEA Statutory Requirements for Representative or Collective Actions
Administrative Process
Complaint
Dealing with Companion Litigation by EEOC
Notice and Opt-in Procedure
Authorization of Representation or "Certification" of Class
Discovery in ADEA Representative or Collective Actions
Proving Discrimination in an ADEA Class Action
Forms
12.
Settlements
Settlements
Under Civil Rights Statutes Generally:
Waivers Must be "Knowing and Voluntary" Prospective Waivers – Invalid
Class Action Settlements – Who is Covered?
Waivers Prohibiting Cooperation with Other Employees Who Have Charges
Settlements
Under ADEA:
OWBPA Regulations
"Voluntary" Participation in Exit Program
Cost Justification for Differing Employee Benefits
Severance and Disability Offsets
EEOC Requirement
OWPA Requirements
Tender Back Rules
What to
Look for in Settlement Agreements:
Type and Scope of Release
Entitlement to Benefits
References
Tax Aspects of Settlements
Forms
13. Age
Discrimination in Employee Benefits
Equal
Benefit or Equal Cost Standard of Proof
Early Retirement Benefits
Pension Benefits
Severance Benefits Under OWBPA
Disability Benefits
Health Benefits
Procedural Issues in Discriminatory Benefits Plans
ERISA
14. Work
Force Restructuring, Downsizing, and Reductions in Force
Determine
Whether Facts Present RIF Case
Identify Claims to Raise
Examine RIF Process for Discrimination Evidence
File Timely Charge of Discrimination
Proving Age Discrimination in a RIF
Consider Employer’s Burden of Production
Proving Pretext in RIF Cases
Review Available Remedies
Appendix
15.
Attorney’s Fees and Costs
Parties Entitled to Fees Under ADEA
Calculating Fees
Determining Reasonable Hourly Rates
Compensable Activities
Reasonableness of Hours Expended
Relationship Between Damages Awarded and Fees Sought
Adjustments to Lodestar
Interest on Fee Award
Taxation of Attorney’s Fees
Guidelines for Seeking and Recovering Fees
Preserving Fees When EEOC Involved in Litigation
Checklist for Fee Petition
Forms |
