Program

Friday, October 12, 2018

7:30–9:00 a.m.

Registration & Continental Breakfast

8:45–9:00 a.m.

Welcome & Opening Remarks
Terry O’Neill, NELA Executive Director & Matthew C. Koski, NELA Program Director

9:00–10:15 a.m.

The Nuts & Bolts Of Litigating Harassment & Hostile Work Environment Claims
Moderator: Valerie Brender
Speakers: Margaret A. Harris & Tod F. Schleier*
Workplace harassment is not prohibited expressly by federal statute, and federal courts have been left to fill in the gaps regarding the legal standards that govern what constitutes unlawful conduct. As such, this area of the law can be quite complex, creating obstacles to vindicating the rights of those facing workplace harassment that are not present in other types of employment cases. Our advocates will break down the components of a harassment case and identify the particular challenges—legal, factual, and practical—to litigating them effectively.

10:30–11:45 a.m.

Practical Considerations When Representing Clients In Harassment Cases
Speakers: Parisis (Gerry) Filippatos & Nina Pirrotti
Representing a client in a harassment case requires special considerations that are different from other types of discrimination cases. This panel will discuss the roadmap of a pre and current litigation on behalf of a harassment victim, including intake, considerations in deciding whether to represent a harassment victim, informing the client about the challenges of litigating a harassment case, dealing with treating doctors and the client’s potential pre-existing conditions, and preparing the client for their deposition.

12:00–1:15 p.m.

Luncheon

1:30–2:45 p.m.

Using The Law Creatively To Find Justice For Workers Facing Harassment
Moderator/Speaker: Allegra L. Fishel
Speakers: David M. Koller & Mary Jo O’Neill*
In this time of #Metoo and #Timesup workers’ rights advocates have a unique opportunity to push for systemic change within the workplace for each and every case they handle, even where there is only one client. This panel will discuss how to use negotiation before or during litigation to obtain broad systemic workplace changes, including training, policy revisions, and/or personnel changes. This period of broader cultural awareness may also provide opportunities to reframe existing legal standards in ways that can make them more reflective of the reality of our workplaces and more effective in achieving the goals and purposes of our employment laws.

2:45–4:00 p.m.

Meeting The Special Needs Of Clients Who Have Experienced Trauma
Moderator/Speaker: Amy L. Coopman
Speakers: Brenda Adams & Professor KC Wagner
Working with clients who have experienced trauma, such as sexual assault or sexual harassment, requires special considerations and skills given the nature of the harm to victims. This panel will offer practice tips from attorneys experienced in working with such clients, as well as ways to work with mental health professionals who are providing critical support to your clients. Our panelists also will discuss counseling victims during difficult phases of litigation, including depositions and mediation, while keeping in mind what is best for the client’s overall well-being.

4:15–5:30 p.m.

The Role Of Mediation In Resolving Workplace Harassment Claims
Moderator: Cheri L. McCracken
Speakers: Lynne Bernabei & the Honorable Steven P. Logan*
Mediation in harassment cases is often a welcome settlement process, but it can present unique challenges to both the client and lawyer. This panel of advocates and a member of the bench will discuss best practices for how to anticipate and handle some of the unique issues that can impact the mediation process and outcome in harassment cases. Topics will include the potential need to educate your mediator about harassment, anticipating who should be present at the mediation (or not), supporting an emotionally vulnerable client through the mediation process, deciding what information to share and what information to keep confidential, valuing your client’s emotional distress damages, and helping your client meaningfully decide when to settle.

5:30–7:00 p.m.

Reception
Co-sponsored by The Arizona Employment Lawyers Association and The Employee Rights Advocacy Institute For Law & Policy.

Saturday, October 13, 2018

7:30–9:00 a.m.

Registration & Continental Breakfast

9:00–10:15 a.m.

Effectively Challenging Discrimination & Harassment In A Post-Epic Systems World
Moderator: Jessica Riggin
Speakers: Eve H. Cervantez & Leah M. Nicholls
Workers’ rights advocates nationwide have condemned the U.S. Supreme Court’s recent Epic Systems decision as an “epic fail”—a ruling that will prevent the full and effective enforcement of state and federal employment laws for years to come, especially when systemic violations are at issue. But all is not lost. We will have a pragmatic discussion about ways to defeat forced arbitration clauses and offer strategies for success in arbitration, focusing in particular on the unique considerations present in harassment and discrimination cases.

10:30–11:45 a.m.

Understanding The Increasingly Important Role Of Non-Litigation Tools To Address Toxic Workplaces & Industries
Moderator: Devin Wrigley
Speakers: Emily Black Favreau*& Douglas H. Wigdor
In the #MeToo era, victims have increasingly turned to the media and the Internet to organize and share their stories of workplace sexual assault and harassment. Given the difficulties of litigating sexual harassment cases, these tools can often prove more effective in defeating sexual harassment than traditional legal channels. We will discuss the role that non-litigation tools such as the press and social media can play in addressing toxic workplaces, and in assisting attorneys and clients to achieve success in both litigation and non-litigation contexts. This panel will also discuss the role of attorneys in educating the public about legal and non-legal remedies for victims of sexual harassment and assault.

1:15–2:45 p.m.

Disproportionate Vulnerability To Harassment: Exploring Issues Of Women In Non-Traditional Professions & Low-Wage Workers
Moderator: Marc Siegel
Speakers: Jessica Stender* & Gillian Thomas*
This panel will explore how harassment can be more prevalent and systemic in workplaces or industries that are traditionally dominated by men, and how certain groups of workers may be more vulnerable to unlawful treatment. We’ll cover issues relating to low-wage workers and intersecting identities, including immigration status, national origin, and race. We’ll also cover the kind of employment structures that can contribute to these vulnerabilities, and call for potentially different approaches to litigation.

3:15–4:30 p.m.

Harassment Rarely Occurs In Isolation: Representing Clients Who Have Multiple, Intersecting Claims
Speakers: Shaylyn Cochran* & Jennifer A. Reisch
Harassment is in many cases the product of broader workplace cultures that permit a variety of forms of unlawful behavior to persist. As such, workers facing harassment often have potentially actionable claims involving other forms of discrimination, e.g., gender, national origin, pay, etc., as well as a higher risk of experiencing retaliation. Our panelists will review the considerations that come into play when deciding whether and how to bring a case with multiple, intersecting causes of action. These include understanding the different substantive liability standards that may apply, acquiring and deploying evidence that may bear on multiple claims, and knowing when it might be in the client’s best interest to either not pursue or jettison certain claims.

4:30–5:45 p.m.

How Legislation & Public Policy Can Be Used To Address Workplace Harassment
Moderator/Speaker: Maya Raghu*
Speakers: Joseph M. Sellers* & Jessica Stender
An essential component to ridding our workplaces of harassment will involve updating—and in some cases creating—the applicable legislative and regulatory provisions, but the appropriate policy solutions may vary among different states or between the state and federal level. Our panelists will review the challenges and opportunities involved in crafting and enacting policy responses to the harassment epidemic, and present examples of how different jurisdictions have sought to address the problem.