Sex and power: Are sexual harassment lawsuits more common in Las Vegas?

Showgirls pose with guests during the New Years Eve party at the Fremont Street Experience Monday, Dec. 31, 2012.

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A public seminar on sexual harassment is scheduled for July 17 and 18 at the JW Marriott. The seminar, which costs $349 a day (online discounts are available through June 17), will include workshops led by investigators, panels on how social media is changing legal boundaries and lessons about gender identity and sexual orientation discrimination.

Sex is everywhere in Las Vegas.

Many of the city’s resorts have topless entertainment. Casino cocktail servers wear revealing costumes. Posters for sexy shows plaster billboards, taxis and walls.

A visit to one of Las Vegas’ numerous gentlemen’s clubs or male revues is a rite of passage for conventioneers, Wolfpack wannabes and other “Hangover” fans who want to let their hair down after a long day.

So it stands to reason that the city must be the sexual harassment capital of the world.

That’s not the case – although experts say Las Vegans are less likely to report abuse.

Las Vegas ranks slightly above the national average for sexual harassment cases, according to local employment law attorneys. But there also are more unreported incidents of harassment here, they said, because Las Vegas’ sex-heavy environment is considered the norm by most valley residents.

Locals don’t bat an eyelash at a scantily clad showgirl, for instance, while tourists gawk and jockey to snap photos.

Amy Burkholder, director of the U.S. Equal Employment Opportunity Commission office in Las Vegas, said that 7.6 percent of the claims fielded nationally by the federal agency involve sexual harassment, but in Southern Nevada, the percentage rises to 9.6. Last year, that amounted to 113 of 1,177 cases.

“Vegas has different elements than other parts of the country,” said Christine Park-Gonzalez, an EEOC program analyst in Los Angeles. “Due to the nature of the tourism industry and the entertainment industry, sexual elements that can be considered taboo in traditional corporate environments may not be as taboo in these industries. There are some differences.”

But Burkholder noted that there isn’t a disproportionately high percentage of harassment cases involving tourism and entertainment companies. In fact, the state’s most prominent sexual harassment incidents over the past three years occurred in workplace environments similar to those in any city in America.

While most workers accept a sexually charged atmosphere as a norm in Las Vegas, managers are quick to step in to make sure employees don’t cross over from appropriate workplace banter to actionable harassment.

Still, it happens.

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Shelley Chinchilla is administrator of the Nevada Equal Rights Commission.

Shelley Chinchilla, administrator of the Nevada Equal Rights Commission, said sexual harassment is the most common form of discrimination her office investigates. The Equal Rights Commission is one of two government agencies that review sexual harassment claims in Southern Nevada.

Chinchilla said incidents tend to be even more prevalent in workplaces where alcohol is present, such as clubs and resorts.

“I do a lot of training with companies that own casinos,” she said. “What I hear a lot is in this sexually tainted work environment that everyone accepts as a given, there are sexual innuendoes, joking going around, dating between co-workers – even between supervisors and co-workers – so that’s absolutely going to contribute (to an environment where sexual harassment can occur). And if you already have that culture, as soon as someone’s uncomfortable and somebody makes that complaint about discrimination, as a company, how do you change that culture overnight?”

Chinchilla said she thinks many incidents go unreported because of peer pressure or people’s fear of losing their job if they bring the matter to a supervisor’s attention.

Malani Kotchka, however, isn’t convinced that the Las Vegas atmosphere generates more cases, because she doesn’t believe sexual harassment is about sex. Kotchka is a Lionel Sawyer Collins shareholder who has represented employers in labor cases for 35 years.

“It’s more about power than it is about sex,” Kotchka said. “Because it’s about power in the workplace, it can happen in any workplace – and it does.”

Kotchka said she has handled more cases involving the gaming industry than other types of companies, but she believes the reason is that gaming dominates Las Vegas employment, not because of the work environment.

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Patrick Hicks, a Southern Nevada employment attorney who specializes in defending companies against sexual harassment claims, is seen Thursday, May 23, 2013.

Patrick Hicks, an attorney with Littler Mendelson, specializes in defending employers from harassment claims and wrongful termination cases. Littler Mendelson is the largest employment firm in the country, and the company’s offices field hundreds of harassment cases every week. Its Las Vegas office has 18 attorneys dedicated to such cases.

Not a week goes by without his office receiving a sexual harassment concern or complaint, Hicks said. While incidents can occur in any workplace, they’re often more prevalent in casinos because of outside parties – typically, the customers.

“You may have a customer who has had too much to drink, he’s not winning at the tables, or he just gets a little flirtatious and a little overaggressive,” Hicks said. “There are opportunities for it to come up more often. Is it more common in the industry? Maybe. But I can think of other industries where it’s just as common.”

Hicks said the gaming industry is very sensitive to the possibility of sexual harassment incidents and is very proactive in its approach to educating its workforce.

“My experience is that they don’t put up with a lot of nonsense,” Hicks said. “If you don’t live in Las Vegas, you may think, ‘Hey, it’s Las Vegas. Alcohol, sex and fun,’ but it’s really more corporate America than you might otherwise think.”

Courts also tend to consider environment when evaluating cases.

“For example, if inappropriate language is used by a football coach on a football field, it’s going to be treated differently than if that comment were made in, say, a bank,” Hicks said.

So what exactly is sexual harassment?

The EEOC defines it as unwelcome sexual advances, requests for sexual favors or other verbal or physical harassment that’s sexual in nature. It can include offensive remarks about a person’s sex. Making offensive comments about women in general also is illegal.

The law, part of Title VII of the Civil Rights Act of 1964, applies to businesses with 15 or more employees. It doesn’t prohibit teasing, offhand comments or minor isolated incidents, but behavior becomes illegal when remarks are frequent or severe enough to create a hostile or offensive work environment or result in a victim being fired or demoted.

A harasser can be a victim’s supervisor, a manager from another department, a co-worker, client, vendor or customer.

The exact number of sexual harassment incidents that occur in Southern Nevada is hard to pinpoint as many are resolved before they’re reported to state or federal officials. The EEOC reviews discrimination complaints of all sorts, including those based on race, origin, age, religion, disability and sex.

In Las Vegas, about 10 percent of cases involve sexual harassment. Nationally, between 7,500 and 8,000 sexual harassment cases are brought to the EEOC’s 53 field offices.

The Las Vegas EEOC office, which serves Esmeralda, Lincoln, Mineral, Nye and Clark counties, has seen close to 100 sexual harassment complaints a year since it opened in 2006. Of those cases, more than half were dismissed because investigators found no reasonable cause. Another 10 percent were settled out of court.

Only 2.7 percent of cases ended with a jury awarding benefits to an employee.

In 2012, monetary awards for victims totaled $43 million. The record payment in a sexual harassment case occurred in 2000, with a $54.6 million judgment.

Several high-profile sexual harassment cases have made headlines locally in recent years, according to the EEOC:

• Hotspur Resorts, which operated the JW Marriott, settled a 2011 suit in November by paying $155,000. The suit alleged that since 2003, three female employees at J.C. Wooloughan’s Irish pub were subjected to aggressive physical and verbal sexual harassment by a male co-worker who later became their supervisor. The EEOC argued that the harassment continued until the harasser was fired in 2007, and the company failed to prevent further incidents. Hotspur agreed to revise its anti-harassment policy and complaint procedure and conduct additional training for all managers.

• A federal judge in July ordered Prospect Airport Services, which provides wheelchair services to passengers at McCarran International Airport, to put measures in place to prevent sexual harassment in the workplace. The order came on the heels of Prospect settling a sexual harassment case for $75,000. A male employee received sexually suggestive notes from a female co-worker while employed at Prospect in 2002. The man’s wife had recently died; he rebuffed the notes and turned them over to a supervisor who made light of the advances. The incidents increased in intensity, and the woman gave the man a semi-nude photo of herself. Over the course of a year, the harassment occurred almost daily. Co-workers questioned the victim’s sexuality due to his rigorous rejections, causing him to resign in 2003.

• Lakemont Homes Nevada in Reno agreed to pay $267,000 to settle a sexual harassment and retaliation lawsuit in November 2011. Four female employees were subjected to vulgar comments, unwanted propositions and touching by a male sales agent. The EEOC said the harasser asked one victim to have sex with him and threatened her life at gunpoint. The victims were forced to quit while the harasser remained employed until 2005.

• In January 2010, the EEOC obtained a $110,000 settlement from Bill Heard Chevrolet in Las Vegas. Workers at the car dealership grabbed at a female employee’s breasts, made crude remarks about women’s bodies and persistently solicited dates and sexual favors. One woman in the office was sexually assaulted. Nine women complained about daily verbal harassment.

Workers who feel they are being harassed can contact the EEOC to pursue the matter. The agency provides a questionnaire that determines the next steps.

Often, however, the best place to start is with a workplace supervisor. Many times, complaints can be resolved without having to file a formal charge.

Complaints that are filed with the EEOC have to be done so within 300 days of an incident to be considered.

The EEOC works with the Equal Rights Commission to determine whether federal or state laws have been violated and which agency would process the complaint. In most cases, EEOC caseworkers can determine whether there is enough evidence for a person to sue, proceed with mediation or launch an EEOC investigation.

Employers receive a copy of the charges from the EEOC.

In some cases, the agency recommends mediation. It’s a cheaper alternative to a lawsuit if both employee and employer agree to the process. A mediator doesn’t assess who’s right or wrong but tries to help settle claims.

If mediation is rejected, the case moves to an EEOC investigator. The length of the investigation depends on the complexity of the case and the resources available. Las Vegas’ EEOC office has four investigators and one trial attorney.

An investigation can take months to complete, but the standard time frame is 180 days. The length typically depends on how cooperative a business is, Burkholder said. Some take a couple of months, others more than a year. Most companies cooperate because the EEOC has subpoena powers.

The EEOC notifies both sides of its findings. If the evidence is weak, the charge is dismissed. If not, the agency tries to settle the case without a trial.

If negotiations fails, the EEOC has to decide whether to take the case to federal court or advise the alleged victim to file a suit privately.

Nationally, the EEOC litigates about 325 cases a year.

When the EEOC takes on a case, it shifts from being an impartial arbitrator to being a prosecutor. Victims also can hire employment attorneys to file a lawsuit on their own.

The costs can be high.

For companies, attorneys agree that the best defense is to avoid incidents in the first place. Education is the key, they said.

The EEOC and many employment law firms offer seminars to brief managers about sexual harassment and teach them about how laws are interpreted.

“The responsibility of training is on the employer,” Park-Gonzalez said. “They don’t have to use the EEOC, but we’re an option. They can use a consultant or their own human resources people or an outside attorney. Employers need more than a policy; they need for a policy to mean something. The staff needs to know what that policy is and what it means and to be trained to know what to do when they have one of these issues.”

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