Lynne Bernabei recently presented two Continuing Legal Education seminars for the American Law Institute at its annual Advanced Employment Law and Litigation conference (Washington, D.C., February 27-28, 2014). Her first paper, co-authored with Lauren Mendonsa and Alan Kabat, was the “Title VII Update, Including Developments in the Area of Sexual, Religious, and Racial Harassment and Discrimination.” This update focused on 2013 federal court decisions applying Title VII, particularly to sexual, religious, and racial harassment and discrimination. In particular, (1) the Supreme Court limited the scope of those who are “supervisors” for purposes of vicarious liability under Title VII; (2) the federal courts have carefully examined whether an employer properly accommodated an employee’s request for a religious accommodation, and whether an employee’s religious belief was sincerely held; and (3) race and gender discrimination claims, both disparate impact and disparate treatment, remain active areas of litigation. This update also addressed recent appellate decisions arising from litigation brought by the EEOC and how the courts and employers have responded, particularly (1) disparate impact claims arising from employers’ use of criminal and credit checks in the hiring process, and related efforts to enact “ban the box” legislation that would restrict the ability to use criminal checks in the hiring process; (2) employers’ attempts to obtain attorneys’ fees when prevailing over the EEOC; (3) attempts by employers to argue that the EEOC’s alleged failure to conciliate before filing a lawsuit is an affirmative defense justifying dismissal of the complaint; (4) the Fifth Circuit’s en banc consideration of same-sex harassment; and (5) a potential en banc case in the Tenth Circuit involving religious discrimination against job applicants who wear a headdress. Lynne’s other presentation was on electronic discovery issues in employment litigation, co-authored with Alan Kabat, “Electronic Discovery Problems in Employment Litigation”. This article discussed several cutting-edge issues in electronic discovery in employment litigation, including: (1) the use of keyword searching versus predictive coding for reviewing and producing large sets of documents; (2) privilege and waiver issues arising from electronic discovery, including the impact of Rule 502, Fed. R. Evid.; and (3) ethical issues arising from accessing another party’s e-mails or social media sites.
