Malani Kotchka, a shareholder at Lionel Sawyer Collins, has represented employers before the Internal Revenue Service, U.S. Department of Labor, Equal Employment Opportunity Commission and Nevada OSHA. Kotchka has worked on behalf of companies involved in labor cases for 35 years.
She spoke about sexual harassment cases from the employer perspective:
How many sexual harassment cases do you handle a year?
Typically, two cases a year come through our door. Sometimes, it’s advice, but more often it’s litigation when one of our clients has been sued.
What’s the biggest challenge you face in hearings?
The biggest challenge when my witnesses are on the stand is to make sure their vocabulary is sexually neutral and that they do not inadvertently use a common cultural phrase that all of a sudden makes them look suspect. That’s harder to do sometimes than you’d think because our lives are permeated with sexual references. It’s the culture, and the media are all over it, and sometimes when people talk, you’d be amazed at the things they say, even if they don’t mean to portray themselves as sexist.
What’s the one thing you don’t want to see or hear during a sexual harassment hearing?
You don’t want a male witness to refer to women as “girls.” Of course, you don’t want any sexually pejorative comments either – references to body parts or anything like that. You really don’t want them commenting on a woman’s appearance if it’s a male-female case. And I would assume that if you had a male-male case, it would be the same thing. You don’t want any comments about how the victim looks.
Tell me about your most satisfying case.
My most satisfying case actually came out of the convention industry. I represented an employer that was accused of harassment.
It went to a jury trial, and we had a defense verdict: when she complained, the employer took immediate action and removed the supervisor and made sure nothing further happened.
The female employee also had a voluntary relationship with the male supervisor. I think when she later complained that he was harassing her after the relationship ended, the female jurors were very suspicious of the allegations. When I talked to them afterward, they thought since she said she had this voluntary relationship, they believed him when he said that when she terminated the relationship, he stayed away from her.
Tell me about a case that didn’t go the way you hoped.
It was the first case I ever had in the sexual harassment area back in the early ‘80s.
A hotel had fired a kitchen steward. There were two female bus people, and he would wait until there was no one around, and he would grab them, one at a time, not together, and pull them into a restroom and try to kiss them. This happened to two young women, and they complained.
The hotel investigated, and they fired the kitchen steward, but he was covered by a collective bargaining agreement with the Culinary Union so the case went before an arbitrator. The arbitrator believed the two women and that it had happened. But he said he thought they exaggerated what happened and because of that, he put the steward back to work.
I’ve always remembered that, and I’ve often wondered whether today he would have done the same thing. That case was decided before sexual harassment was getting any publicity. It definitely didn’t go the way I wanted it to go.
Have you seen an increase in the number of men who file sexual harassment claims?
Yes, there’s a definite increase, with both male-on-male harassment and female-on-male harassment.
It makes a certain amount of sense because sexual harassment is about power. As more women move into more powerful positions, more managerial positions, human nature being what it is, the same issues come into play.