American Bar AssociationSection of Labor and Employment Law

J.W. Marriott, Austin, TexasMarch 30 – April 2, 2016 AUSTIN

✪TEXASNational Conference on

Equal Employment Opportunity LawPresented by the Equal Employment Opportunity Committee

Join Us!Dear Colleague:

We are pleased to provide you with this invitation to register for the 2016 ABA National Conference on Equal Employment Opportunity Law. We are confident this will be the most outstanding program on EEO law offered in the coming year. The National Conference on Equal Employment Opportunity Law is presented by the ABA Section of Labor and Employment Law’s Committee on Equal Employment Opportunity Law.

This brochure outlines the excellent program that has been developed. It provides an unparalleled opportunity to focus on both trial practice issues and current legal and policy developments relating to equal employment opportunity and related workplace claims. The program will address issues and concerns from the perspective of plaintiff, management, union, the judiciary and government counsel. We are particularly enthusiastic that this year’s program features sessions focusing on discrimination law in the era of legal innovation. As with all of our sessions, it promises to be a fascinating learning experience!

The Conference also affords the opportunity to meet and network with top level practitioners from the all areas of the practice, including government leaders.

We are hopeful that you will join us in Austin for this exceptional Conference!

Sincerely,

Lisa J. Banks Employee Co-Chair

Gregg M. Corwin Union & Employee Co-Chair

Jennifer L. Sabourin Employer Co-Chair

1

Wednesday, March 303:00 – 6:00 p.m.

Routine Facts, New Theories: Discrimination Law in an Age of Legal InnovationCenturies of racial turmoil gave way to the Civil Rights Act of 1964. Sex discrimination was also prohibited, but didn’t have the same sway, even in the early days of the Equal Employment Opportunity Commission, where Executive Director, Herman Edelsberg, famously told the press, “There are people on this Commission who think that no man should be required to have a male secretary—and I am one of them.”

But that was then. Today, the EEOC and EEO lawyers deal with claims unimagined in 1964, many brought about by fresh readings of plain language and others by innovative lawyering.

The Equal Employment Opportunity Committee is pleased to present an insightful afternoon that examines this transition to explore the significant legal innovations of the last decade and predict future innovations that will confront and confound practitioners over the coming years. This examination takes place in three parts. Part I will recount the civil rights movement and the early years of Title VII through the eyes of Willie King, former EEOC employee and secretary to Dr. Martin Luther King, Jr., and Bill Robinson, who, beginning in 1967, was responsible for litigating cases for the NAACP and later the EEOC, including a primary role in Title VII’s most unpredictable, extraordinary, and enduring innovation: the interpretation in Griggs v. Duke Power that created the disparate impact cause of action. Part II will examine the most innovative issues of the second decade of the Twenty-First Century; many of them devised by lawyers at the EEOC, NLRB and other agencies. Part II will also consider the proper role of government lawyers in pursing novel legal theories. Finally, Part III will predict how today’s innovative regulatory and statutory changes or interpretations will affect practitioners and clients in the future.

3:00 – 3:45 p.m.

Part I: The Early Years Focused on Race and Sex DiscriminationModerator: Cathy Ventrell-Monsees, Senior Counsel to the Chair, U.S. Equal

Employment Opportunity Commission, Washington, DC

Program Agenda

2

Speakers: Hon. Victoria A. Lipnic, Commissioner, U.S. Equal Employment Opportunity Commission, Washington, DC

Willie King, Former Secretary to Dr. Martin Luther King Jr., Washington, DC

William L. Robinson, University of the District of Columbia, Washington, DC

3:50 – 4:45 p.m.

Part II: Legal Innovations from the 1980s to the Present Moderator: Jocelyn Hunter, The Home Depot, Atlanta, GA

Speakers: Hon. Charlotte A. Burrows, Commissioner, U.S. Equal Employment Opportunity Commission, Washington, DC

Jocelyn Frye, Center for American Progress, Washington, DC

Donald R. Livingston, Akin Gump Strauss Hauer & Feld LLP, Washington, DC

4:45 – 4:55 p.m.

Break

4:55 – 6:00 p.m.

Part III: The Future of Discrimination Law and the Changing WorkplaceModerator: Gregg M. Corwin, Gregg M. Corwin & Associate Law Office, P.C.,

St. Louis Park, MN

Speakers: Barry Goldstein, Of Counsel, Goldstein, Borgen, Dardarian & Ho, Oakland. CA

Laurie N. Robinson Haden, CBS Corporation, New York, NY

Gary R. Siniscalco, Orrick, Herrington & Sutcliffe LLP, San Francisco, CA

Sandra F. Sperino, University of Cincinnati College of Law, Cincinnati, OH

6:00 – 6:45 p.m.

New Attendee Reception, All Welcome!

6:45 – 8:00 p.m.

Welcome Reception

Program Agenda

3

Thursday, March 317:00 – 8:55 a.m.

Constituency Breakfasts Enjoy the opportunity to have open and private discussions with similarly situated practitioners concerning employment law subjects. You will also have the opportunity to network with colleagues nationwide who share your focus on equal employment opportunity matters.

7:00 – 8:55 a.m. Management and Defense Lawyers7:00 – 7:20 a.m.Both internal and external defense counsel are welcome for a little business and some announcements.

7:20 – 8:55 a.m.All Conference attendees are welcome for an annual update of significant EEO cases by Paul Grossman. This session is not to be missed!

Hosts: Angie C. Davis, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, , Memphis, TN

Anne-Marie V. Welch, Clark Hill PLC, Detroit, MI

Speaker: Paul Grossman, Paul Hastings, LLP, Los Angeles, CA

8:00 – 8:55 a.m. Employee/Plaintiff Counsel(Union Counsel Also Welcome)

Host: Anne Shaver. Lieff Cabraser Heimann & Bernstein LLP, San Francisco, CA

9:00 – 10:30 a.m.

Spouse/Guest Breakfast (Optional Ticketed Event)

9:00 – 10:45 a.m.

Government Plenary Back by popular demand, join top officials from the U.S. Equal Employment Opportunity Commission, U.S. Department of Labor and U.S. Department of Justice as they answer questions from seasoned plaintiff and defense lawyers on topical issues about government litigation, recent court decisions involving their agencies, strategic plans and task forces, and recent and expected EEOC and DOL guidance and Executive Orders.

Wednesday, March 30, 2016 – Thursday, March 31, 2016

4

Facilitators: Karen M. Buesing, Akerman, LLP, Tampa, FL

Rachel Geman, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY

Speakers: Hon. P. David Lopez, General Counsel, Equal Employment Opportunity Commission, Washington, DC

Hon. M. Patricia Smith, Solicitor of Labor, U.S. Department of Labor, Washington, DC

Justin Levitt, Deputy Assistant Attorney General, U.S. Department of Justice, Civil Rights Division, Washington, DC

10:45 – 11:00 a.m.

Welcome from Committee Co-Chairs and Announcements from the Section of Labor and Employment Law LeadershipLisa J. Banks, Katz, Marshall & Banks LLP, Washington, DC

Jennifer L. Sabourin, Miller, Canfield, Paddock and Stone, P.L.C., Detroit, MI

Gregg M. Corwin, Gregg M. Corwin & Associate Law Office, P.C., St. Louis Park, MNWayne N. Outten, Section Chair, Outten & Golden LLP, New York, NY

Gail Golman Holtzman, Section Chair-Elect, Kass Shuler P.A., Tampa, FL

11:00 – 11:15 a.m.

Break

11:15 a.m. – 12:30 p.m.

21st Century Science Meets 20th Century Rules: Can Employers Make Effective Use of Big Data that Complies with UGESP?In recent years, the use of “big data” in employment decisions, a practice often referred to as “people analytics,” has exploded. Proponents claim that today’s science, including the use of software tools and algorithms, offers more predictive measures of job performance. They further suggest that the use of big data can mitigate biases and help create a more skilled and diverse workplace, and cite to research indicating that traditional hiring methods are overly subjective and rely too heavily on non-job related factors such as whether a candidate and the hiring official has friends in common or went to the same school. The automation of recruiting and hiring practices also has the appeal of faster and more efficient hiring. While the value of these tools may seem appealing to employers, they may also subject employers to new risks, such as those posed by inadvertently accessing private or otherwise protected

Program Agenda

5

information. Critics also ask, is it possible to automate the human element out of the hiring process? Or, will the use of big data simply codify existing biases, and further perpetuate them? Our panel will explore the pros and cons of this new science, including the risks posed by an automated software program as an employee selection device, and how such a practice would, or would not, meet the requirements of Uniform Guidelines on Employee Selection Procedures.

Moderator: Timothy Wong, 3M, St. Paul, MN

Speakers: Kathleen Lundquist, APTMetrics, Darien, CT

Heather Morgan, Paul Hastings LLP, Los Angeles, CA

Christine E. Webber, Cohen Milstein Sellers & Toll PLLC, Washington, DC

12:30 – 1:45 p.m.

Diversity Luncheon Co-Hosts: Elaine Drodge Koch, Bryan Cave LLP, Kansas City, MO

Justin M. Swartz, Outten & Golden LLP, New York, NY

Speaker: Paulette Brown, President, American Bar Association, Locke Lord LLP, Morristown, NJ

Paulette Brown, a labor and employment lawyer with Locke Lord and its Chief Diversity Officer, made history when she was elected the first woman of color to lead the 400,000-member American Bar Association in August 2015. Soon after taking office, President Brown created the ABA Commission on Diversity and Inclusion 360. This project is tasked with reviewing and analyzing diversity and inclusion in the legal profession, the judicial system and the Bar itself. These are important topics. As lawyers, we need to be the role models for our clients’ organizations. The EEO Committee established a diversity best practices list for law firms over a decade ago. Please join President Brown and two of our committee’s distinguished members as they review where we are today and engage the audience on how we can all help move the ball forward toward greater diversity and inclusion in the legal profession.

2:00 – 3:15 p.m.

Track 1: Deep Diving Pay EquityThe past fifty years have seen extraordinary progress for women. Yet many still point to a seemingly intractable gender pay difference. This panel will provide the practical insight you need to understand issues involving pay equity. Here are a few of the puzzles the panel will explore:

• When you peel away the politics, what does “gender pay gap” mean?

• How do you identify potential pay discrimination liability?

Thursday, March 31, 2016

6

• Are there observable, unintentional, and quantifiable factors thatcontribute to a persisting pay gap, and how can I find them?

• What are the more elusive factors that cannot be explained by data alone,and why should I be concerned about them?

• How effective are the Equal Pay Act and state discrimination laws ataddressing these factors?

• Have the factors that contribute to gender pay differences changed over time?

Please join this panel of socio-economic and policy wonks who will make youan expert in this highly publicized, yet often misunderstood topic.

Moderator: Amira Day Dallafior, Facebook, San Francisco, CA

Speakers: Hon. Charlotte A. Burrows, Commissioner, U.S. Equal EmploymentOpportunity Commission, Washington, DC

Mary Baker, ERS Group, Tallahassee, FL

Adam T. Klein, Outten & Golden LLP, New York, NY

Nancy E. Rafuse, Polsinelli, Atlanta, GA

2:00 – 3:15 p.m.

Track 2: Employment Laws in the New Sharing Economy: Square Pegs in Round Holes? Today’s on-demand services feature a new breed of worker. Uber and Lyft face current lawsuits over classifying drivers as independent contractors, but traditional notions of employee don’t fit either. Other challenges in on-demand industries include equal access, health and safety hazards, and unions seeking to organize these workers. U.S. laws, regulations, and case law pre-date these new business structures and often do not provide clarity on how these workers should be classified. Adding to the discussion is Department of Labor’s Administrator’s Interpretation No. 2015-1, which provides guidance on these issues. Other countries, including Canada and Germany, have a third category of employee, the “dependent contractor;” are we ready for the same? This panel will explore recent developments and the continuing challenges presented by the new digital services world.

Moderator: R.J. Hendricks, Morgan Lewis LLP, Los Angeles, CA

Speakers: Katherine E. Bissell, Deputy Solicitor for Regional Enforcement, U.S. Department of Labor, Washington, DC

Michael Manley, International Brotherhood of Teamsters, Washington, DC

Beth A. Ross, Leonard Carder, LLP, San Francisco, CA

Gerlind Wisskirchen, CMS Hasche Sigle, Cologne, Germany

Program Agenda

7

3:20 – 4:30 p.m.

Track 1: Immigrant Workers: Harassment and Retaliation in the WorkplaceImmigrant workers are especially vulnerable to harassment and retaliation, due to their often-precarious status within the United States. Recent cases have highlighted abuse of immigrant workers. This panel will explore strategies to prevent and timely address harassment and retaliation, both within the workplace and in the context of EEOC complaints and litigation. It will highlight employer best practices including staff training and timely intervention at the workplace, strategies to protect immigrant workers from harassment and retaliation in the context of EEOC filings and litigation and feature an update from the EEOC covering the Commission’s focus on immigrant workers.

Moderator: Rebecca Smith, National Employment Law Project, Seattle, WA

Speakers: Hon. Constance Barker, Commissioner, U.S. Equal Employment Opportunity Commission, Washington, DC

Nelsy C. Gomez, Cozen O’Connor, Houston, Texas

Monica Guizar, Weinberg, Roger & Rosenfeld, Alameda, CA

Christopher Ho, Employment Law Center, San Francisco, CA

3:20 – 4:30 p.m.

Track 2: Brainstorming Best Practices in Pay EquityWhat, if anything, can be done to bridge a gender pay gap when one appears? What lessons can be learned from corporate America? Is the gap narrower in certain industries, and if so, what are they doing differently? Can women personally effect change by improving negotiation skills, “leaning in,” overcoming the “confidence gap,” or through other personal actions? Should they be expected to? What can we do to narrow what some say is a widening pay gap in the legal profession? Join us for a robust facilitated conversation about specific approaches that leaders in various industries—including the legal profession—are taking or can be taking to eliminate pay disparities, and the responsibilities of government, employers, and society as a whole in addressing this important issue.

Moderator: Lauri A. Damrell, Orrick, Herrington & Sutcliffe LLP , Sacramento, CA

Speakers: Wendy L. Kahn, Zwerdling, Paul, Kahn & Wolly, P.C., Washington, DC

Jahan Sagafi, Outten & Golden LLP, San Francisco, CA

Thursday, March 31, 2016

8

4:45 – 6:00 p.m.

Suds and Substance—License to Spill— The Perils of Provisions, Procedures and Policies Raise ‘em high and join us as we clink our glasses while exploring thorny whistleblower and retaliation issues in investigations and standard contract and policy provisions. The Securities & Exchange Commission, the National Labor Relations Board and the Equal Employment Opportunity Commission all have chimed in, challenging routine warnings in investigations and standard provisions in separation, settlement and employment agreements and employee handbook policies. Duties to maintain confidentiality, to cooperate and to not bring claims in exchange for releases have all been challenged. Enjoy a brew while we explore pitfalls and best practices for avoiding whistleblower issues in employment agreements, separation agreements, handbook policies and investigations.

Hosts/ Facilitators: Mark Hanna, Murphy Anderson, Washington DC

Grace Speights, Morgan Lewis LLP, Washington, DC

Jordan Thomas, Labaton Sucharow, LLP, New York, NY

6:00 – 7:00 p.m.

Diversity Reception, “Opening the Doors to Diversity” (All attendees are encouraged to attend)

7:00 – 9:00 p.m.

Conference Dinner—Yeehaw in Texas! Cowboys and cowgirls—grab your hats, pull up your britches, and join us for some Texas Bar-B-Que and other authentic Texas staples at the annual EEO Conference Dinner. This evening is going to be a good ole time!

Friday, April 17:00 – 8:00 a.m.

Constituency BreakfastsInternational (All Attendees Welcome)

Hosts: Danny J. Kaufer, Borden Ladner Gervais LLP, Montreal, QC

Jeffrey E. Goodman, Hicks Morley Hamilton Stewart Storie LLP, Toronto, ON

Program Agenda

9

Union:Host: Rebecca Yee, Service Employees International Union Local 721,

Los Angeles, CA

7:00 – 9:00 a.m.

In-House Counsel Breakfast (for In-House Counsel Only) Roundtable Hosts: Michael Canaras, The Home Depot, Atlanta, GA

Ronetta J. Francis, Walmart Stores, Inc, Fayettevlle, AR

Robert O’Hara, United Technologies Corporation, Hartford, CT

8:15 – 9:30 a.m.

McDonnell Douglas v. Green Burden Shifting— Is It What It Used to Be and If not, What Is It?Courts have used McDonnell Douglas burden-shifting as an acceptable method of proof since 1973. Originally used in failure-to-hire claims, this proof method has rapidly expanded and, in varying permutations, presently forms a basis for analyzing numerous federal discrimination claims. Recently, in Young v. UPS, citing McDonnell Douglas, the Supreme Court found that pretextcould be shown where the employer’s policies imposed “a significant burden” on the protected class, which, when coupled with reasons advanced by theemployer that are “not sufficiently strong to justify the burden,” give rise to aninference of intentional discrimination. The dissenters contend the majority’spronouncement conflates “disparate impact with disparate treatment” andcauses unnecessary confusion in a well-established burden-shifting framework.Has the Supreme Court expanded the McDonnell Douglas framework? Whatevidence now demonstrates pretext? What are courts really looking for intheir analysis? Join our distinguished judiciary and litigator panel for a livelydiscussion of where McDonnell Douglas burden-shifting stands 40 yearsafter it was conceived.

Moderator: Catherine A. Conway, Gibson, Dunn & Crutcher LLP, Los Angeles, CA

Speakers: Hon. Bernice B. Donald, United States Court of Appeals for the Sixth Circuit, Memphis, TN

Glenda Pittman, Glenda Pittman & Associates, P.C., Austin, TX

Michael Reiss, Davis Wright Tremaine, Seattle, WA

Michael Subit, Frank Feed Subit & Thomas, Seattle, WA

Thursday, March 31, 2016 – Friday, April 1, 2016

10

9:40 – 10:55 a.m.

Track 1: Post-Dukes, Are Disparate Impact Claims the Next Wave of EEO Class Actions?Our panel of experienced class action practitioners will discuss the latest trends in EEO class litigation, including the rising number of disparate impact cases. At a growing rate, plaintiff’s attorneys and the EEOC are pursuing class-based claims that focus on the use of uniform policies, tests or other employee selection devices that allegedly have a statistically significant adverse impact against a protected group and are not sufficiently job-related and consistent with business necessity. Examples of such claims include suits focusing on the use of background checks or other tests given to applicants, performance reviews in determining pay or promotions, or the use of prior salary in determining prior pay. Panelists will also discuss the different strategies involved in litigating disparate impact versus disparate treatment class claims, including how, post-Dukes, a disparate treatment class may be certified in light of Dukes’ emphasis on the importance of a “uniform” policy in order to meet the class certification requirements of Rule 23. Finally, the panel will explore the evolving use of statisticians, social science experts and I/O psychologists in this type of class litigation, including the role they play, if any, at the class certification stage.

Moderator: Anne B. Shaver, Leiff Cabraser Heimann & Bernstein LLP, San Francisco, CA

Speakers: Katherine Kimpel, Sanford Heisler Kimpel LLP, Washington, DC

Kenneth M. Willner, Paul Hastings LLP, Washington, DC

9:40 – 10:55 a.m.

Track 2: Marijuana: Budding Problems? Over half the states provide for some form of legal use of marijuana—whether for medicinal or recreational purposes—even as marijuana remains an illegal drug under federal law. Against the backdrop of conflicting laws, the increased prevalence of marijuana provides new workplace challenges in hiring, retaining and accommodating employees who use legal marijuana. These conflicts may cause employees to choose between keeping their jobs or relieving their pain and ailments. Legal practitioners and employers must consider the application of discrimination laws and the duty to provide reasonable accommodations to medicinal marijuana use, as well as the impact on workplace policies and collective bargaining agreements. This panel will include experienced counsel who will discuss the interplay between state and federal laws, the application of discrimination laws and the effect of state legalization of marijuana on workplace policies including drug testing, wellness programs, the interactive process, fitness for duty exams, and collective bargaining agreements.

Program Agenda

11

Moderator: Mark W. Berry, Davis Wright Tremaine, Seattle, WA

Speakers: Jillian M. Cutler, Frank Freed Subit & Thomas LLP, Seattle, WA

Danielle Lucido, Engineers and Scientists of California, IFPTE, Local 20, San Francisco, CA

Monique Tuttle, Vail Resorts Management Company, Broomfield, CO

11:00 a.m. – 12:15 p.m.

Supreme Court Review A Conference favorite returns this year! Don’t miss this great opportunity to hear top U.S. Supreme Court practitioners provide a true insider’s perspective and a lively review of the Court’s employment-related decisions from the 2015-2016 term. You will also hear predictions from these Supreme Court experts about the outcomes of employment law cases pending on the Court’s docket at the time of the conference.

Moderator: Hyland Hunt, Akin Gump Strauss Hauer & Feld LLP, Washington DC

Speakers: Eric Dreiband, Jones Day, Washington DC

Richard George McCracken, Davis, Cowell & Bowe, LLP, San Francisco, CA

Paul Mollica, Outten & Golden LLP, Chicago, IL

12:15 – 1:30 p.m.

Lunch on your own

1:30 – 2:30 p.m.

EEOC Regional Attorney Panel: EEOC Litigation and Enforcement ActivitiesThe stakes for employers are higher than ever in EEOC entanglements. The EEOC continues to focus on systemic litigation, despite an overall decrease in the number of lawsuits filed by the EEOC each year. This panel will explain why. It will explore a broad range of issues faced by Regional Attorneys, including the nature of involvement of EEOC attorneys in systemic investigations, recent subpoena enforcement actions, involvement in the conciliation process, the impact of the Strategic Enforcement Plan on litigation initiated by the Commission, the 706 versus 707 conundrum, key discovery-related issues in systemic litigation, use and selection of experts, improved litigation tools, inter-office collaborative efforts and the role of headquarters in EEOC litigation, and dealing with intervention and the role of the plaintiffs’ bar in litigation initiated by the EEOC. Anyone involved in current or potential systemic litigation with the EEOC will not want to miss this panel.

Friday, April 1, 2016

12

Moderators: Kelly M. Dermody, Leiff Cabraser Heimann & Bernstein LLP, San Francisco, CA

Barry A. Hartstein, Littler Mendelson P.C., Chicago, IL

Speakers: Robert Canino, Regional Attorney, U.S. Equal Employment Opportunity Commission, Dallas, TX

Mary Jo O’Neill, Regional Attorney, U.S. Equal Employment Opportunity Commission, Phoenix, AZ

Anna Park, Regional Attorney, U.S. Equal Employment Opportunity Commission, Los Angeles, CA

2:45 – 4:30 p.m.

Modern Family: Keeping Up with Accommodations for Religious, Caregiver, and Transgender Employees (Round Robin Program)As the workforce diversifies, legal protections in the workplace are tested for modern day accommodations. This panel will discuss up to the minute laws on caregiver, religious, and transgender accommodations, including the impact of Lusardi v. McHugh on transgender employees and EEOC v. Abercrombie & Fitch on religious accommodations. And what happens when personally held religious beliefs conflict with the civil rights of others, as we saw when a Kentucky court clerk refused to issue marriage licenses to same sex couples last summer. Does sex trump religion or vice versa and how do employers navigate these conflicts? Failure to recognize and implement these modern day accommodations is bad for both the employee—who may be prevented from successfully performing essential job functions—as well as the employer—who may be exposed to increased liability for discrimination and retaliation claims. Discuss these issues, learn best practices by in-house lawyers, and hear how unions have secured rights for religious, caregiver and transgender employees, often by partnering with the employer to accommodate a diverse workforce.

Speakers—Religious Accommodations:

Nicole Husband, Warner Brothers Entertainment Company, Burbank, CA

Julie M. Richard-Spencer, Robein, Urann, Spencer, Picard and Cangemi, APLC, Metairie, LA

Andrew S. Rosenman, Mayer Brown LLP, Chicago, IL

Carolyn Wheeler, Katz Marshall & Banks, Washington, DC

Speakers—Transgender Accommodations: T. Scott Kelly, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, AL Nicole M. Walthour, International Paper Company, Memphis, TN

Ilona Taylor, Transgender Law Center, Oakland, CA

Program Agenda

13

Speakers—Caregiver Accommodations: Julia Campins, Campins Benham-Baker, LLP, Lafayette, CA

Chris Seaton, Burges Salmon, London, England

Retu Singla, TWU Local 100, Brooklyn, NY

Saturday, April 27:30 – 8:15 a.m.

Committee Feedback Breakfast This is an open meeting at which all Committee members are welcome, to discuss this Committee’s upcoming business, including planning for next year’s Conference and other Committee activities.

8:30 – 9:45 a.m.

What is “Sex”?Today, “sex” means many things in society, typically biological sex or characteristics like being pregnant, LGBT, and heterosexual. But what does sex mean under Title VII? Courts largely have limited the definition along traditional male/female lines, including sexual stereotyping. That said, in July 2015, the EEOC first held that “sexual orientation is inherently a ‘sex-based consideration’” and thus necessarily enjoys Title VII protection. Last year, the President’s executive order further expanded sex discrimination to bar federal contractors and subcontractors from discriminating based on sexual orientation or gender identity. Further, the OFCCP’s continued new proposed rule to update sex discrimination guidelines encompasses disparate treatment based on dress or personal appearance and other forms of sex stereotyping. Is the definition of sex lawfully changing, and does or will it ultimately cover “perceived” sex, asexuality, gender fluidity, and/or other identities? Can it ever be a BFOQ? Join this panel as it discusses what sex currently means and predicts what it might encompass in the future.

Moderator: Barbara J. D’Aquila, Norton Rose Fulbright, Minneapolis, MN

Speakers: Lisa J. Banks, Katz, Marshall & Banks, Washington, DC

Keir Bickerstaffe, U.S. Department of Labor, Office of the Solicitor, Washington, DC

J. Randall Coffey, Fisher Phillips, Kansas City, MO

Ericka Dorsey, American Federation of Government Employees, Washington DC

Friday, April 1, 2016 – Saturday, April 2, 2016

14

9:45 – 11:00 a.m.

OFCCP’s Focus on the Finish Line: Unfinished Business or Building a Legacy This session will explore the ever changing landscape of OFCCP enforcement and compliance. We will examine OFCCP’s approaches to its compensation standards and guidelines and the implications of OFCCP’s increased access to compensation information. The panel will offer impressions of OFCCP’s focus on “steering” claims that affect recruiting and hiring, promotion, and compensation processes. We will also provide insights of current requirements of contractors in light of several new obligations arising from Vietnam Era Veterans’ Readjustment Assistance Act and Section 503 regulations and recent Executive Orders including minimum wage requirements, Fair Pay & Safe Workplaces, and pay and sex discrimination guidelines.

Moderator: Ann H. Fromholz, The Fromholz Firm, Pasadena, CA

Panelists: Keir Bickerstaffe, U.S. Department of Labor, Office of the Solicitor, Washington, DC

David S. Fortney, Fortney & Scott, LLC, Washington, DC

Robert O’Hara, United Technologies, Hartford, CT

11:15 a.m. – 12:30 p.m.

Ethical Bounds of Trying a Case with Media AttentionIn today’s digital world, many employment trials get same day attention with reporters covering every minute and angle of the trial’s juicy details and some “FACTS” that never see the light of day in court. Even if there isn’t 24/7 court coverage, workplace disputes are often “tried” in newspapers, over social media, and on television. “No comment” rarely works any more. Indeed, an employment lawyer’s job increasingly includes media management. But what can be said and how far is too far? Come hear a panel of ethics gurus discuss the emerging debate about the ethics of responding to the media—because whether the dispute involves Silicon Valley, Wall Street, or Mayberry RFD, both sides can win or lose in the court of public opinion.

Moderator: Jon Green, Green & Savits, Morristown, NJ

Speakers: Ronetta J. Francis, Walmart Stores, Inc., Fayetteville, AR

Nathan Goldberg, Allred Maroko & Goldberg, Los Angeles, CA

Jessica Parry, Orrick, Herrington & Sutcliffe LLP, Menlo Park, CA

Program Agenda

15

Program Co-Chairs Lisa J. Banks, Katz, Marshall & Banks, LLP, Washington, DCGrace Speights, Morgan, Lewis & Bockius, LLP, Washington, DCRebecca Yee, Service Employees International Union, Los Angeles, CA

Program Planning CommitteeLisa J. Banks, Katz, Marshall & Banks, LLP, Washington, DCHillary Benham-Baker, Campins Benham-Baker, Lafayette, CAKatherine E. Bissell, U.S. Department of Labor, Washington, DCKaren M. Buesing, Akerman LLP, Tampa, FLJulia Campins, Campins Benham-Baker, Lafayette, CAJ. Randall Coffey, Fisher & Phillips LLP, Kansas City, MOErin Connell, Orrick, Herrington & Sutcliffe, LLP, San Francisco, CABarbara J. D’Aquila, Norton Rose Fulbright, Minneapolis, MNAngie Davis, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,

Memphis, TNEricka Dorsey, American Federation of Government Employees,

Washington DCBarry A. Hartstein, Littler Mendelson, P.C., Chicago, ILDanny J. Kaufer, Borden Ladner Gervais LLP, Montreal, QCT. Scott Kelly, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,

Birmingham, ALJennifer Liu, The Liu Law Firm, San Francisco, CADonald R. Livingston, Akin Gump Strauss Hauer & Feld,

Washington. DCZena McClain, The McClain Law Firm, Charleston, SCRobert O’Hara, United Technologies, Hartford, CTEric D. Reicin, MorganFranklin Consulting, LLC, McLean, VA Jennifer L. Sabourin, Miller, Canfield, Paddock and Stone, P.L.C.,

Detroit, MI

Anne Shaver, Lieff Cabraser Heimann & Bernstein LLP, San Francisco, CA

Gary R. Siniscalco, Orrick, Herrington & Sutcliffe, LLP, San Francisco, CA

Grace Speights, Morgan, Lewis & Bockius, LLP, Washington, DC Michael Subit, Frank Feed Subit & Thomas, Seattle, WARoberta L. Steele, National Employment Lawyers Association,

Oakland, CAAngie Wade Stubbs, AFL-CIO, Washington, DCJustin M. Swartz, Outten & Golden LLP, New York, NYCathy Ventrell-Monsees, U.S. Equal Employment Opportunity

Commission, Washington, DCRebecca Yee, Service Employees International Union, Los Angeles, CA

Committee Co-ChairsJennifer Sabourin, Miller, Canfield, Paddock and Stone, P.L.C.,

Detroit, MILisa J. Banks, Katz, Marshall & Banks. LLP, Washington, DC Gregg M. Corwin, Gregg M.Corwin & Associate Law Office, P.C., St. Louis

Council Liaisons Kelly M. Dermody, Lieff Cabraser Heimann & Bernstein LLP,

SPONSORSPlatinum

Fisher & Phillips LLP

Katz, Marshall & Banks LLP

Morgan, Lewis & Bockius LLP

Outten & Golden LLPGold

Akerman LLP

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Borden Ladner Gervais LLP

Barry Goldstein and Goldstein Borgen Dardarian & Ho

Davis Wright Tremaine LLP

Lieff Cabraser Heimann & Bernstein LLP

Littler Mendelson P.C., Austin, Texas Office

Miller, Canfield, Paddock and Stone, P.L.C.

Orrick, Herrington & Sutcliffe LLP

Paul Hastings LLP

Practical Law (Thomson Reuters)

Porter Wright Morris & Arthur, LLP

Resolution Economics

The ERS Group

BronzeGarrison, Levin-Epstein, Richardson Fitzgerald

& Pirotti, P.C.

Margulies Employment Law Consulting

Robein, Urann, Spencer, Picard & Cangemi, APLC

Zwerdling, Paul, Kahn & Wolly, P.C

San Francisco, CAJulie M. Richard-Spencer, Robein, Urann, Spencer, Picard

and Cangemi, APLC, Metairie, LA C. Geoffrey Weirich, Weirich Consulting & Mediation, Atlanta, GA

Park, MN

16

Meeting RegistrationThe Conference registration fee is $550 ($450 if registered by January 9, 2016) per person for Section of Labor & Employment Law members and $650 ($550 if registered by January 9, 2015) for non-Section members who are members of the ABA and $750 ($650 if registered by January 9, 2016) for non-ABA members. First-Time Attendees may register at the discounted rate of $395. Section members who are Government Agency and Non-Profit Employees may register for $295. The registration fees cover the Wednesday Welcome Reception and Thursday Conference Dinner, as well as all meeting materials, continental breakfasts and refreshment breaks during the meeting. The guest/spouse registration fee of $150 ($50 for children 12-18) includes the Wednesday and Thursday (less the guest breakfast which requires a separate ticket).

You are encouraged to register on-line at www.americanbar.org/laborlaw. You also may register by filling out the attached registration form and returning it with your payment by March 14, 2016 to the address indicated on the registration form. Registration fees are refundable, less a $50 administrative fee, for cancellations received in the Section Office by March 14, 2016.

Hotel AccommodationsWe have negotiated special group rates at the J.W. Marriott of $259 (deluxe single or double occupancy) per night, plus taxes. The reservation deadline for the group rate is March 1, 2016. If necessary, cancellations must be made at least 24 hours prior to the scheduled arrival to avoid a one-night cancellation charge. Reservations may be made by calling the J.W. Marriott at 512-474-4777. Be sure to mention you are attending the “ABA National Conference on Equal Employment Opportunity Law” to receive the group rate.

Air Travel DiscountsAmerican Airlines and United Airlines provide two types of airfare discounts to ABA meeting attendees. You can receive these discounts offline by calling, toll free, American Airlines at 800-433-1790 or United Airlines at 800-521-4041or Orbitz For Business at 877-222-4185. Formore information, visit the ABA Travel Websiteat www.americanbar.org .

Registration InformationGround TransportationThe J.W. Marriott is located 10 miles from Austin International Airport. It is approximately a 25 minute ride and $30 taxi fare.

Group rates have been negotiated with Hertz for our meeting. Call Hertz’s toll-free reservation number at 800/654-3001 and mention the ABA CPD# 13000 for more details.

Spouse/Guest BreakfastOn Thursday, March 31 from 9:00–10:30 a.m. there will be a ticketed Spouse/Guest Breakfast at the J.W. Marriott. This gathering has become a wonderful tradition and is the perfect time to get together with longtime friends and new acquaintances. The cost to attend is $50 per person. Advance registration is required.

GolfPlease check the appropriate box on the registration form if you are interested in playing golf on Thursday and/or Friday afternoons. The fee for each day of play will be $190.

Continuing Legal Education CreditThe ABA directly applies for and ordinarily receives CLE credit for ABA programs in AK, AL, AR, AZ, CA, CO, DE, GA, GU, HI, IA, IL, IN, KS, KY, LA, MN, MS,MO, MT, NH, NM, NV, NY, NC, ND, OH, OK, OR, PA, PR, SC, TN, TX, UT, VT,VA, VI, WA, WI, and WV. These states sometimes do not approve a program for credit before the program occurs. This course is expected to qualify for 13.75 CLE credit hours (including 1.25 ethics hours) in 60-minute states and 16.50 credit hours (including 1.50 ethics hours) in 50-minute states. This transitional program is approved for both newly admitted and experienced attorneys in NY. Attorneys may be eligible to receive CLE credit through reciprocity or attorney self-submission in other states. For more information about CLE accreditation in your state, visit www.americanbar.org/cle/mandatory_cle.html.

ABA Section of Labor and Employment LawNational Conference on Equal Employment Opportunity Law

Presented by the Equal Employment Opportunity CommitteeMarch 30 – April 2, 2016 • J.W. Marriott • Austin, Texas

Registration Deadline: March 14, 2016 • Hotel Reservation Deadline: March 1, 2016

NAME NICKNAME/BADGE NAME

FIRM/ORGANIZATION

STREET ADDRESS

CITY STATE ZIP CODE

PHONE FAX

E-MAIL ADDRESS NAME OF ATTENDING SPOUSE/GUEST(S)

Affiliation: (Please choose one)

Employer/Management Union & Employee Employee/Plaintiff Public/Government Neutral Other

First-Time Attendee

Registration Form

Registration Fees: QuantitySection Member Early Registration Discount (on or before 1/9/16) ________ @ $450

ABA #__________________________________Section Member (after 1/9/16) ________ @ $550ABA Non-Section Member Early Registration Discount (on or before 1/9/16) ________ @ $550

ABA Non-Section Member ________ @ $650Non-ABA Member Early Registration Discount (on or before 1/9/16) ________ @ $650

Non-ABA Member ________ @ $750

First-Time Attendee ________ @ $395

Section Member Government Agency or Non-Profit ________ @ $275

ABA Member Government Agency or Non-Profit ________ @ $375

Non-ABA Member Government Agency or Non-Profit ________ @ $475

Law Students ________ @ $0

Spouse/Guest(s) ________ @ $150

Children (12–18) ________ @ $50

Social Events and Optional Activities: Quantity

Wednesday Welcome Reception ________ (Included in registration fee)

Thursday Diversity Reception ________ (Included in registration fee)

Thursday Conference Dinner ________ (Included in registration fee)

Friday Reception ________ (Included in registration fee)

Spouse/Guest Breakfast ________ @ $50/person

Thursday Golf Tournament ________ @ $190/person

Friday Golf Tournament ________ @ $190/person

Total Amount Enclosed: $ _____________________

Register by:Online:www.ambar.org/midwinter (Credit card payments accepted online only.)

Fax: (312) 988-5850

Mail:American Bar AssociationAttn: Service Center Mtg/

Event Registration321 North Clark St.Chicago, IL 60654

Enclosed check (made payable to American Bar Association)

Am

eric

an B

ar A

ssoc

iati

onS

ecti

on o

f La

bor

and

Em

ploy

men

t La

w3

21

Nor

th C

lark

Str

eet

Chi

cago

, IL

60

65

4

Non

-Pro

fit O

rgan

izat

ion

U.S

. P

osta

geP

AID

Am

eric

an B

ar A

ssoc

iati

on

Onl

ine

Reg

istr

atio

nw

ww.a

mba

r.org

/mid

win

ter

Reg

iste

r To

day!

Ea

rly B

ird R

egis

trat

ion

Ends

Jan

uary

9!

Natio

nal C

onfe

renc

e on

Equa

l Em

ploy

men

t Op

portu

nity

Law

AUSTIN

✪TEXAS