Equal Employment Opportunity Law Newsletter

Newsletter Editors: Jeanne Goldberg and Phil Eschels

• 2008 College of Labor and Employment Law Inductee
• 2008 Section CLE Conference

We're going to Disneyworld (and the spa)! Bring the whole family along to our next National Conference on Equal Employment Opportunity, April 1-4, 2009, at the luxurious but affordable Ritz-Carlton Orlando, Grande Lakes. There's something for everyone, including a resort spa, an 18-hole Greg Norman signature golf course, and much more - all only 10 miles from Walt Disney World, 7 miles from Universal Studios and 2 miles from SeaWorld. We'll have great on-site activities, such as our traditional receptions, golf and tennis, as well as discounted theme park tickets.

Highlights from the 2008 National Conference on Equal Employment Opportunity … More than 250 attorneys, members of the judiciary, and government agency officials gathered in Tucson, Arizona March 26-29, 2008, for the Committee’s annual EEO conference. Here are some highlights of what they learned:

Judge Scheindlin and Magistrate Grimm on E-Evidence and Advanced E-Discovery

Participants received advice from two acknowledged national experts on discovery and admissibility of electronically stored information ("ESI"): Hon. Shira A. Scheindlin, U.S. District Court, Southern District of New York, and Hon. Paul W. Grimm, Chief Magistrate, U.S. District Court, District of Maryland, in a presentation moderated by past Committee Co-Chair Barb D'Aquila.

The step-by-step analysis on the admissibility of ESI in Magistrate Judge Grimm's detailed decision in Lorraine v. Markel, 241 F.R.D. 534 (D. Md. 2007), has become required reading for practitioners handling any aspect of e-discovery. Many in attendance also touted the newly-issued Sedona Conference report on the admissibility of ESI: http://www.thesedonaconference.org/dltForm?did=ESI_Commentary_0308.pdf.

Judge Grimm provided participants with his copyrighted chart for analyzing the admissibility of ESI under the Federal Rules of Evidence, emphasizing particularly those issues relating to authentication and hearsay. Judge Grimm reviewed a checklist of potential authentication methods that can be used for e-mail, Internet website postings, text messages, "chat room" postings, stored computer records, computer animations and simulations and digital photographs. Judge Grimm cautioned lawyers to think more strategically about ESI admissibility issues from the outset of their case, using every opportunity during discovery to authenticate potential evidence. Because fewer than 4% of federal cases go to trial, attorneys should consider admissibility issues raised in discovery disputes and at the summary judgment stage. Judge Scheindlin discussed the limited but growing case law relating to the admissibility of instant messages, websites and web pages, noting differences between closed and open sites and the special problems of archived web pages. Judge Scheindlin described how attorneys can use "hash values" -- algorithms that form a unique digital footprint for every electronic document -- to ensure that electronic documents have not been modified and, with the proper software, label and identify each electronic document.

The Art of Negotiation - A Practitioner's Guide to Using Negotiation Skills Effectively in Mediation - Dr. Charles Craver

National mediation expert and George Washington University Law School Professor Charles Craver, in a session moderated by Lynne Stern, shared the secret of what makes a good negotiator: someone who never gets everything he or she wanted at the end of the negotiation. In short, a good negotiator is one who always wants more, and never ceases to ask, "is that the best we can do?" Professor Craver said effective communication is a key to achieving the best deal possible. He cautioned to watch out for verbal cues that may compromise a position, such as, "I cannot go higher," while "I don't want to go higher" usually means that "I will go higher." A good negotiator will listen carefully because people always reveal their priorities. There are goals that a party must have, those that a party really wants, and those that the party is willing to give away. Professor Craver advised to look for the interests that underlie the claimant's position. On occasion, an adverse party simply wants an apology and an acknowledgment of wrongdoing or harm.

What's your style? Effective negotiation also includes careful use of negotiation style. Competitive adversarial negotiators are less effective simply because the old adage that "you catch more flies with honey" is true. A more effective (and ethical) negotiator is one who is a competitive problem solver. A primary goal of negotiation is to maximize one's own return. In addition, a secondary, long term goal of a successful negotiator is to maximize the joint return because the parties will likely interact again in the future. Professor Craver also summarized the stages of negotiation. The first and most significant stage is preparation. During this stage, negotiators should seek to maximize their aspiration level and convince themselves that they deserve what they are trying to get, in order to avoid "caving in" at the last minute. The tone of negotiation should be set at the outset of the negotiation session, with a clear culture of bargaining without "nasty" behavior, which should be avoided by setting ground rules in advance.

Opening Bids: Professor Craver offered numerous suggestions: A negotiator should start with an opening position that is rational (explicable) but not reasonable (where you want to end up). During the information gathering stage of the negotiation, a good negotiator will attempt to find common interests. At the same time, information should be disclosed slowly. If a negotiator is too open, he or she will concede too much or be viewed as disingenuous. During negotiations, it is advisable to overstate and understate valuation for strategic purposes. Negotiators should ask broad questions and then wait silently until they are answered. While remaining truthful, a negotiator can provide more or less information to further the parties' interest. In the distribution stage, the negotiator's goal should be bracketed between the parties' interests. A negotiator should never issue an ultimatum that he or she is not willing to carry out. A negotiator should be aware that, once a promise is made, the other party is likely to rely upon it when responding to that promise. In making concessions, a negotiator should make sure that it moves the party in the direction he or she wants, and be continually aware of the bottom line.

Closing the Deal:The closing stage of negotiation is critically important. A good negotiator moves slowly at the end of negotiation and seeks other areas of opportunity. Whoever moves more quickly (the anxious party) closes the gap between the parties more quickly, which may concede too much. Once the parties have a deal (the cooperative stage), a good negotiator will look for means to expand the bargain.

In an energized practical demonstration workshop following Professor Craver's presentation, participants had a unique opportunity to apply his recommended negotiation techniques. Participants were required to view their position from the opponent's position to determine what value they place on certain aspects of their case. Participants paired off to represent a fictional student and professor in a sexual harassment case and were instructed to negotiate a resolution using the techniques that had been taught. Each side was presented with confidential facts that allowed them to value their case. After the class negotiated in pairs, two seasoned attorneys and negotiators, Kelly Dermody and Julius Turman, presented the same negotiation to the group, following which Professor Craver and the audience analyzed the negotiations for practical advice.

Employee Selection Procedures in the New Millennium

Defense Counsel Lawrence Ashe warns that when it comes to doing credit checks on applicants, employers had best "just say no."

As employers increasingly rely on a variety of applicant screening procedures, including traditional "pen and paper tests," checking credit scores and obtaining arrest and conviction records, four government and private sector experts debated the employment issues these selection procedures present. EEOC General Counsel Ron Cooper, Mike Foreman (Lawyers' Committee for Civil Rights Under Law), Ann Fromholz (Senior Counsel, Kaiser Foundation Health Plan, Inc.), and Lawrence Ashe (Ashe, Rafuse & Hill) noted that, although employers may be turning to these screening mechanisms to improve the quality of new hires, there is also a greater risk of legal exposure if the selection procedures intentionally or inadvertently screen out applicants or employees based on a protected characteristic.

Stepped-Up EEOC Enforcement: GC Cooper warned that employers will see more and more EEOC litigation involving selection criteria. Cooper cited to the EEOC's systemic initiative that is devoting more energy to cases that have a wider impact. In addition, the EEOC has recently upgraded its technological capabilities in order to competitively manage complex litigation. Three examples of recent EEOC actions include EEOC v. Dial Corp., 469 F.3d 735 (8th Cir. 2006); EEOC v. Ford, et al., 1:07 CV 703 (S.D. Ohio consent decree filed Dec. 20, 2007) (settlement included $1.6 million for nationwide class of 700 African-Americans who took written test for skilled trade apprenticeship positions that was alleged to have disparate impact based on race, placement of 55 African Americans on apprentice list, development of a new selection method consistent with the EEOC's Uniform Guidelines on Employee Selection Procedures ("UGESP"), 29 C.F.R. Part 1607, and detailed monitoring and reporting requirements); and EEOC, et al. v. Walgreen Co, 2007 U.S. Dist. Lexis 74628 (S.D. Ill. 2007) (S.D. Ill. consent decree entered March 2008) (extensive injunctive relief and payment of over $24 million to class of thousands of African American employees in action alleging discrimination by use of subjective criteria for store assignments).

Observing that the UGESP have not been revised since they were issued in 1978, Cooper noted that, unlike the U.S. Department of Labor, the EEOC has not adopted a different definition of "applicant" for purposes of Internet hiring and applies the same UGESP standards to both "pen and paper" and electronic hiring processes. See alsoEEOC Policy Statement on the Issue of Conviction Records under Title VII (2/4/87); EEOC Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with Conviction Records from Employment(7/29/87); EEOC Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII (9/7/90); and EEOC Fact Sheet on Employment Tests and Selection Procedures (12/3/07). Cooper noted that the Commission heard extensive testimony regarding testing issues at a Commission meeting in May 2007 (testimony available at www.eeoc.gov/abouteeoc/meetings/5-16-07/index.html), and recently voted to recommend a three-year extension of the UGESP.

View from the Bar: Lawrence Ashe asserted that, although the 30-year-old UGESP provides the "grandparent guidance in this area," it has received "decidedly mixed reviews" from courts. Ashe noted that the UGESP relied heavily on the APA's 1974 Standards for Educational and Psychological Tests, which have been updated multiple times, making it unclear to which version of the APA standards the UGESP refer. Ashe predicted significantly more government activity, noting that there have been more EEOC and OFCCP cases involving selection criteria in the past three years than in the previous fifteen.

Michael Foreman echoed the other panelists' view that many employers would rather risk Title VII liability for using discriminatory selection criteria than face potential tort liability for negligent hiring for allegedly failing to adequately investigate applicants' background information. Foreman predicted that plaintiffs will claim that the use of criminal background history in hiring has a disparate impact based on race because African Americans are statistically more likely to be arrested, convicted and incarcerated. Foreman also asserted that white applicants with comparable, and even worse, criminal histories as black applicants are hired at a much more frequent rate.

Some panel members expressed practical concerns that applying the 1990 EEOC guidance on arrest records effectively requires employers to be "both judge and jury." EEOC Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, No. 915.061 (September 7. 1990) The Guidance, for example, requires evaluating the three business necessity factors applicable to convictions [nature and gravity of offense, including circumstances and number of offenses; length of time since the conviction or completion of sentence; and nature of job held or sought]. In addition, an employer must determine the likelihood that an applicant engaged in the alleged misconduct before relying on it as evidence of unfitness. Consequently, this effectively requires employers to conduct a due diligence investigation into whether evidence exists that the alleged crime was actually committed. In fact, some state laws prohibit employers from making pre-employment inquiries for arrest records at all, or from refusing to hire an applicant based solely on the fact of a prior arrest.

Foreman suggested that, although it may be more time-consuming and expensive, conducting an individualized assessment of risk may assist an employer in defending against either a disparate impact claim or a tort claim for negligent hiring. Fromholz added that employers should ensure that recruiters and HR staff are well-trained to know when prior criminal history may be considered, how to assess it, and when it is appropriate to communicate the information to hiring managers.

Credit Checks:Fromholz analyzed a case involving an employment offer that was withdrawn based on a low credit score, and suggested policies employers could draft to avoid or reduce exposure to this type of litigation. Employers could, for example, draft policies to conduct credit checks only in very limited circumstances. Policies could require that a designated human resources official (with legal counsel when prudent) pre-approve any effort to obtain credit history information and any proposed action based on the information obtained. In addition, before any action is taken based on credit information, employers should conduct further background investigation to verify that the information obtained matches the identity of the applicant.

The panel was asked what advice they had -- beyond compliance with the requirements of the Fair Credit Reporting Act -- for employers who want to conduct credit checks. Foreman suggested that employers should not perform credit checks at all because the information obtained is "virtually useless," as there is no correlation between poor credit history and a propensity to theft. Absent validation, therefore, Foreman asserts that employers using credit scores simply expose themselves to discrimination claims by rejected applicants. Ashe stated that, if employers wish to use credit scores as a selection criterion, they should first validate the use. Ashe noted, however, that he is not aware of any good validation studies for the use of credit histories. Moreover, Ashe noted the credit history information that employers obtain may be outdated or inaccurate. Consequently, when it comes to using credit checks, employers should "just say no."

Injunctive Relief Under Class Action Consent Decrees

Donald Livingston joined Barry Goldstein, John Curry and Alex Bermudez in offering insights on obtaining effective injunctive relief in class action cases. Each of these seasoned practitioners agreed that drafting an all-encompassing consent decree presents a myriad of challenges.

Case Studies in Increasing Minorities: Don Livingston of Akin Gump used the military's successful experience in increasing the number of minority commissioned officers after the Vietnam War as a case study. According to Livingston, it demonstrated that achievement of diversity goals requires making the business case, with the support of senior leadership, setting goals to enhance participation in the feeder pool, making a financial investment in education and training candidates for long-term rather than immediate success, investing in recruitment programs to expand the pool of highly qualified minority candidates sought and using race as a factor in recruiting and admissions policies at the entry level. Livingston asserted that this success stood in stark contrast to the thus-far unsuccessful effort by the federal government to increase its hiring, retention and promotion of individuals with disabilities, despite regulations and Executive Orders intended to promote affirmative hiring of people with targeted disabilities. Numerous factors leading to this lack of success include the fact that many senior leaders have not championed the effort, many agencies fail to set numerical goals, the application process is lengthy, vague, and too dependent on online processes, the government has not been effective in informing its target pool about job vacancies and the special hiring authorities that do exist are often not utilized.

Best Practices Applied: Barry Goldstein (of Goldstein, Demchak, Baller, Borgen & Dardarian) and John Curry (of The Boeing Co.) provided a summary of best practices to maximize development of successful settlements, including those Curry developed while handling eight putative class action cases over ten years at Boeing. In order to implement systems designed to ensure fair and non-discriminatory treatment, Boeing engaged in a rigorous self-analysis that utilized human resources professionals during the negotiation stage to ensure input from those who were most familiar with the practical implications of various settlement terms. This involved many months of brainstorming, development and vetting of potential changes, long before they were ever introduced at the mediation table. Carlos Bermudez of the UAW explained that a union's role regarding consent decrees consisted of maintaining positive communication relationships with the employer while preserving its role as the exclusive employee bargaining representative. Bermudez emphasized that, where appropriate, all parties should acknowledge the role played by a union and maintain the integrity of the collective bargaining agreement. Panel members and moderator Alexa Pappas (Morgan Stanley) also discussed the use of civility training, as part of a larger training framework, to help managers achieve long-term goals contained in injunctive relief provisions. Some panelists also suggested the use of outside monitors to assist parties in overseeing the enforcement of consent decrees, but recommended exercising caution and utilizing personal networks when selecting trainers and third-party monitors.

The FLSA at the Frontier

Although the U.S. Department of Labor's 2004 revisions to the FLSA "white collar" exemption regulations were intended to clarify application of the law, panelist David Borgen (Goldstein, Demchak, Baller, Borgen & Dardarian) observed that the changes have actually resulted in increased litigation in this area. Although the revised regulations prompted many employers to audit their own wage and hour practices, thereby promoting compliance, they also prompted numerous new legal challenges to the classification of employees. Borgen also asserted that the regulations can be viewed as having narrowed the exemption, citing the new "standard test" governing who is an exempt "executive."

Fellow panelist and management lawyer Ellen Kearns (Foley & Lardner) expressed a different view, noting that the regulations needed to be updated and clarified, and doubted that any narrowing of the exemption was intentional. Kearns observed that the new requirement that an executive must have some role in hiring and firing has gone largely unnoticed. Kearns predicted this will change, citing as an example Davis v. Mountaire Farms, Inc., 453 F.3d 554 (3d Cir. 2006), in which the court concluded there were triable issues of fact on this question. Kearns advises clients to have employees involved in the hiring process initial job applications or resumes they review to provide evidence of their involvement should a claim arise. Co-panelist Shane Youtz (Youtz & Valdez) also suggested that employees involved in the hiring process complete applicant evaluation forms, which the employer could retain as further evidence of their substantive role in the hiring process should an FLSA claim arise. This could, for example, provide useful evidence if assistant or departmental managers contend that they were improperly classified under the "executive" exemption.

Panelists discussed other current hot topics in this area, including the question of when a non-exempt employee must be compensated for employer-required activities occurring prior to or after work tasks are performed. Discussions included putting on special equipment within the meaning of IBP v. Alvarez, 546 U.S. 21 (2005), or time spent traveling within the worksite as analyzed in Bonilla v. Baker Concrete Construction, Inc., 487 F.3d 1340 (11th Cir. 2007).

Three final practice tips from our panelists:

• Counsel clients that failure to display prominently the required notice on wage and hour law could result in a tolling of the applicable statute of limitations in the event of a claim.

• Remind clients to retain for the two- and three-year time periods an extensive array of records itemized in the regulations.

• Advise clients to retain various electronic "proxy records" evidencing computer log in, telephone usage, and entry and exit from the worksite, which can provide useful evidence of time an employee spent on non-work activities.

Americans With Disabilities Act Update

EEOC Disability Charges on the Rise: Peggy R. Mastroianni, Associate Legal Counsel, U.S. Equal Employment Opportunity Commission, grabbed participants' attention at the outset of the annual ADA Update by announcing that the number of disability charges filed with EEOC spiked 14% from 2006 to 2007 -- taking ADA charges to their highest level in ten years. However, Mastroianni warned that the increased filings did not necessarily mean good news for plaintiffs, noting cases decided this past year in the Sixth, Tenth, and Eleventh Circuits, which held that plaintiffs with cancer, insulin-dependent diabetes, and seizures failed to prove they were substantially limited in performing a major life activity. In fact, Mastroianni noted that over the past year, courts have continued to frequently find that plaintiffs did not fall within the definition of an "individual with a disability" -- often by focusing on what he or she can rather than cannot do in determining if there is a substantial limitation in a major life activity. In particular, Mastroianni highlightedLittleton v. Wal-Mart Stores, Inc., 2007 WL 1379986 (11th Cir. 2007), holding that a plaintiff with mental retardation was not an individual with a disability because his abilities to read and comprehend, drive a car, and attend a technical college were inconsistent with his assertion that he was substantially limited in learning, thinking, or communicating.

Proving "Regarded as" Coverage: Mastroianni also noted that in a number of recent cases plaintiffs had failed to prove that they were "regarded as" substantially limited in the major life activity of working where the evidence merely showed they were perceived as limited only as to performing one job. Mastroianni highlighted Wilson v. Phoenix Specialty Mfg. Co., 513 F.3d 378 (4th Cir. 2008), as a classic "regarded as" case. Even though the plaintiff, who had Parkinson's disease, had returned to work without any restrictions following a medical absence, management nevertheless barred him from performing certain duties or being trained on the new computer system for fear that he would make errors due to his impairment. The Court found that these actions revealed that the employer had regarded the plaintiff as being substantially limited in seeing and performing manual tasks. Mastroianni observed that the decision is also noteworthy because the Fourth Circuit held that typing and writing are manual tasks that transcend the workplace and can be central to peoples' lives.

Common Employer Mistakes: Mastroianni warned employers not to impose strict no-fault attendance or punctuality policies without accounting for the need to make an exception to accommodate an individual with a disability unless doing so would pose an undue hardship. See EEOC v. Convergys Customer Mgt. Group, Inc., 491 F.3d 790 (8th Cir. 2007) (call center employee who used wheelchair was disciplined under punctuality policy because he required extra time to find an available work station each day could be accommodated absent undue hardship by adjusting work hours or providing a reserved work station). Also noting that EEOC has litigated an increasing number of cases involving hearing and vision impairments, Mastroianni highlighted the EEOC's recent victory in EEOC v. Fed. Express Corp., 2008 WL 186150 (4th Cir. 2008), affirming an award of $100,000 in punitive damages in a denial of accommodation claim. This case involved a hearing impaired package handler who did not need a sign language interpreter to perform his duties but was unlawfully denied one for staff safety meetings and training.

"Direct threat to safety" defense: Addressing recent ADA cases involving employer safety concerns, Mastroianni noted that counsel must determine whether the business necessity defense or the direct threat defense applies and which party bears the burden of proof for each. Mastroianni explained the EEOC's position that the employer has the burden to satisfy the direct threat defense in any case where a safety-based qualification standard is used to exclude an employee with a disability. This requires an individualized assessment of whether the employee will pose a significant risk of substantial harm in the particular job at issue that cannot be reduced by a reasonable accommodation. SeeEEOC v. Wal-Mart Stores, Inc., 477 F.3d 561 (8th Cir. 2007). By contrast, Mastroianni noted, in Bates v. United Parcel Serv., Inc., 511 F.3d 974 (9th Cir. 2007), the qualification standard in issue related to performance of an essential function. The court required the plaintiff to prove that he could meet the qualification standard and, once shown, only required the employer to prove that the standard at issue was job-related and consistent with business necessity. Mastroianni remarked that, although this case was seen as a big win for employers, the court's repeated pronouncements about the employer's burden of establishing its defense was similar to reasoning in EEOC v. Exxon Corp., 203 F.3d 871, 875 (5th Cir. 2000), in which the court stated, "the proofs will ensure that the risks are real and not the product of stereotypical assumptions."

New EEOC Publications: Lastly, with many veterans returning home, Mastroianni urged counsel to consult two new EEOC technical assistance documents recently issued in February 2008, addressing the distinctions between USERRA and the ADA, and the application of the ADA to veterans with service-connected disabilities when they seek to return to or enter civilian employment: SeeVeterans with Service-Connected Disabilities and the ADA: A Guide for Employers, http://www.eeoc.gov/facts/veterans-disabilities-employers.html , and Veterans with Service-Connected Disabilities in the Workplace and the ADA, http://www.eeoc.gov/facts/veterans-disabilities.html .

Employment Issues Embedded in the Virtual Workplace: Telecommuting

The growing popularity of telecommuting has brought with it a host of legal minefields. Panelists from across government and the private sector -- Sandra Bell, General Counsel, Ohio Civil Service Employees Association, Karen Buesing, Akerman Senterfitt, Hon. Leslie Silverman, Vice Chair, U.S. Equal Employment Opportunity Commission, and Rebecca Walsh, Senior Employment Counsel, Covidien -- advised that when deciding who should be permitted to telecommute, an employer should follow an established policy rather than ad hoc decision-making. Employers should reserve sufficient discretion to determine on a case-by-case basis whether telecommuting is feasible and appropriate for the particular job and person. The panel suggested that employers could grant telecommuting arrangements on a trial basis, and provide all necessary equipment in order to preserve their ability to monitor the employee's work and also maintain protection of all company information. An ideal candidate for telecommuting is someone who can work independently and without supervision. Various samples of telework agreements and FAQs for employees are available in the panel's conference materials on the EEO Committee's web page.

Panelists urged counsel to consult the EEOC's fact sheet regarding telecommuting as a reasonable accommodation under the Americans with Disabilities Act -- Work At Home/Telework as a Reasonable Accommodation (2/3/03), http://www.eeoc.gov/facts/telework.html. Panelists stated that an employer testing employees for suitability for telecommuting should understand that the results might give rise to a discrimination claim if the test has a disparate impact on a protected category of employees. In addition, courts are split on whether the denial of telecommuting as a term, condition, or privilege of employment that is afforded to others constitutes an adverse employment action under Title VII. The EEOC has ruled in appellate federal sector decisions that it is. Panelists also cautioned against denying telework on the basis of a protected characteristic. See EEOC v. Fiserv, Inc., et al., No. 3:05-cv-469 AS-CAN (N.D. Ind. Oct. 24, 2006); Williams v. Social Security Administration, EEOC Appeal No. 0120054126 (Oct. 4, 2007); Bodenheimer v. Dep't of Housing & Urban Development, EEOC Appeal No. 01A52776 (July 20, 2006).

Finally, among the many potential FLSA issues implicated by telework, employers need to consider wage and hour issues under the FLSA that arise under the so-called "homeworker's doctrine" -- allowing an employer in certain circumstances to pay an employee according to a reasonable compensation agreement instead of the FLSA's specific hourly rate requirements when the employer cannot determine the exact hours the employee works.

Judge Bennett and Mike Reiss on Technology in the Courtroom

Conference attendees who chose to forego golf and tennis in the bright sunshine on Friday afternoon were treated instead to a lively interactive and practical session focused on techniques for making opening statements more engaging and effective using trial technology. Judge Mark Bennett, U.S. District Court, Northern District of Iowa, and Michael Reiss, of Davis Wright Tremaine, drew on their respective experience on the bench and as an advocate to share actual case experiences. In order to make the best use of technology in opening statements, attorneys should use timelines and video clips that are engaging, simple and uncluttered. They emphasized that surveys and their own experiences have repeatedly shown that jurors expect lawyers to use technology in their courtroom presentations, and are not biased against parties who use "fancy technology," even when a large corporation is litigating against an individual plaintiff. Judge Bennett commented that jurors like graphics that "move" rather than convey stale text or other static images, and suggested that counsel vet their presentations before lay people rather than other lawyers when preparing for trial.

As shown in the attached photographs, (see http://share.shutterfly.com/action/welcome?sid=0VZNHLNuxYoU ) members of the EEO Committee enjoyed playing tennis. Finalists in the tennis tournament include:

1. The Mixed Double finalists were Roy Heenan and Mary Foy. The Mixed Doubles champions were Len Court and Rebecca Barnard.

2. The Women Doubles finalists were Carol Poplawski and Jody Court. The Women Doubles champions were Cristina Benitez and Kelly Weirich.

3. The Men Doubles finalists were Rob Bernstein and Bob Vercruysse. The Men Doubles champions were Jim Lavaute and Roy Heenan.