Title VII Litigation: Persistent Evidentiary Challenges

Effective Use of Evidence in Defending Discrimination, Retaliation and Harassment Claims

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Wednesday, January 25, 2012

Recorded event now available

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Course Materials

This CLE course will provide best practices for employers' counsel when confronted with evidentiary challenges during Title VII discrimination, retaliation and harassment lawsuits.


A surge in layoffs during the economic crisis resulted in several Title VII claims by workers challenging employers’ termination decisions. The EEOC has become more aggressive about filing Title VII lawsuits, and private claims are on the rise.

“Me too” evidence, mixed-motive evidence, after-acquired evidence and waiver of atty-client privilege are recurring evidentiary issues in these cases.

Employers’ counsel must consider whether and how to invoke the “stray remarks,” “similarly situated,” “better qualified” or other common defense doctrines to keep out potentially damaging evidence.

Listen as our authoritative panel of employment litigators analyzes recent legal developments affecting evidentiary practice in Title VII litigation. The panel will discuss best practices for defense counsel when confronted with evidentiary challenges during discrimination, retaliation and harassment lawsuits.



  1. Recurring evidentiary issues
    1. “Me too” evidence
    2. “Other supervisor” evidence, including Cat’s Paw Liability case developments
    3. After-acquired evidence
    4. Character evidence
    5. Evidence from social media websites
  2. Strategies for employer counsel
    1. “Stray remarks” doctrine
    2. “Similarly situated” defense
    3. “Better qualified” defense


The panel will review these and other key questions:

  • What are the lessons from the latest case law regarding methods of proof and trial evidence in Title VII cases for defense counsel grappling with difficult evidentiary issues?
  • What recurring evidentiary issues must employment counsel confront when litigating discrimination, retaliation and harassment cases?
  • How can employers effectively combat damaging testimony presented by other employees as to similar discrimination they experienced in the workplace?
  • How can employers successfully defend mixed-motive cases in light of recent unfavorable rulings in these types of cases?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Ann Marie Painter
Ann Marie Painter
Morgan Lewis & Bockius

She focuses her practice on defending employers in employment litigation matters, including wage and hour compliance,...  |  Read More

Liburt, Joseph
Joseph C. Liburt

Orrick Herrington & Sutcliffe

Mr. Liburt has extensive litigation experience successfully defending claims of discrimination, harassment,...  |  Read More

Russell D. Cawyer
Russell D. Cawyer

Kelly Hart & Hallman

His practice focuses exclusively on labor and employment-related legal matters, including litigation in federal and...  |  Read More

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