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Desert Companion

The Law: Sudden Scandal, Slow Change

metoo.jpg

Metoo
Illustration by Brent Holmes

Will the Wynn saga lead to improved protections against sexual harassment in the workplace? One UNLV hospitality professor finds reason for optimism

Dana Cotham, a professor in UNLV’s hospitality college and employment-law attorney, sat down at Coffee Bean & Tea Leaf in Town Square recently to discuss a topic that she’s passionate about: sexual harassment in the workplace. It was February, and the revolting details of casino mogul Steve Wynn’s alleged treatment of female employees were still coming to light, so the obvious questions for someone of Cotham’s expertise were: How could this have happened, and what, if anything, can Las Vegas’ own school for training future casino managers do to prevent it from happening again?

While uncomfortable wading into the abstract swamp of a cultural moment’s significance and skeptical of the Wynn scandal’s prospects of instigating immediate change, Cotham spoke at length about related laws, betraying an optimism about the power that plaintiffs and their attorneys have to improve legal protection for vulnerable individuals. Consider the Bill Cosby case, Cotham says: “If you think back before Weinstein, and before even Wynn, he … kind of started it all.” What’s more, the Cosby case had a significant local impact.

In 2014, Las Vegan Lise Lotte-Lublin was one of dozens of women to accuse Cosby of sexual assault. Seeking his professional guidance, the model and aspiring actress met the famous actor and producer in 1989 at his Hilton suite, where, she says, he convinced her to take two shots of alcohol. Lotte-Lublin, a non-drinker, woke up at home “what felt like several days later,” according to her statement on attorney Gloria Allred’s website. Buoyed by the wave of fellow survivors speaking out, Lotte-Lublin began advocating for a change to Nevada’s statute of limitations on rape reporting. In 2015, Governor Brian Sandoval signed a law extending that limit from four to 20 years. The law also specified that, for victims who file police reports within four years of the alleged incident, there is no limit on the time a prosecutor has to move forward with a case. Allred told the Las Vegas Review-Journal at the time that she believed Nevada was the first state to change its law in the wake of the Cosby scandal.

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How does this relate to Wynn and workplace sexual harassment? Listening to Cotham rattle off the list of landmark cases and laws that have come about since Title VII of the 1964 Civil Rights Act prohibited employment discrimination based on race, color, religion, sex, and national origin, it’s tempting to think that every facet of sexual harassment has been legally covered. But the Cosby scandal and ensuing change to Nevada’s statute of limitations show, as Cotham put it, that “these creative plaintiffs’ lawyers — and I mean that with the utmost respect — find that (thing) that’s missing.”

The rub is, it’s a slow process. Cotham drives home just how slow in her rumination on a half-century’s worth of developments: “The other interesting thing about sexual harassment is that you fast-forward into the ’80s, and it still had not been challenged — sexual harassment in the workplace had not been officially recognized as actionable, even though the law said (discrimination) based on sex is illegal. I think it was 1980, in fact, that the Equal Employment Opportunity Commission as the regulatory agency over Title VII recognized sexual harassment as actionable. And then we see the Meritor Savings case in 1986, where the U.S. Supreme Court finally says, yes, it’s actionable.

“I have to wrap my brain around (the fact) that it’s been illegal since 1964,” she continues, “and yet, we don’t see major movement until the ’80s, which is modern to me. Not the 1920s, when you would semi-expect it. And then you get to the ’90s, and you’ve got the Anita Hill, and we saw how that ended. And then you just see pockets of cases throughout the ’80s and ’90s.”

Cotham began working in human resources in 1991, a year after Hill’s testimony in the confirmation hearings of Supreme Court Justice Clarence Thomas. Cotham passed the bar in 2001, and became an employment-law attorney and HR consultant before joining UNLV in 2009. Over that time, she says, she’s heard it all, both in training seminars she’s taught in all but four U.S. states, and in her Las Vegas classrooms, which are heavily populated by people who are already working on the Strip as everything from concierges to cocktail waitresses. “You could probably make up the worst story you could think of, as far as sexual harassment goes,” she says, “and I would say, yes, that it’s happened.”

Moreover, Cotham’s experience indicates that these stories haven’t changed — for the better or worse — over the years, and that Las Vegas has no corner on the sexual-harassment market; it’s as pervasive as cancer. Still, she concedes that she would like to believe in #MeToo’s power to improve workplace conditions for women.

“Personally, I have processed having these older incidents brought to the forefront, and whether they’re actionable or not legally, people are talking,” she says. “Is this the beginning of a cultural shift? I mean, look back over history — you know, women not able to own property, and then women not respected in the workplace at all, (the mores portrayed in) that Mad Men show, and then there’s the Civil Rights Act. ... Then you have the (1980) Dolly Parton 9 to 5 movie that depicted sexual harassment. … The sexiness of the story is not, ‘Oh my gosh, I can’t believe people are being sexually harassed,’ because it’s happening. But did they feel safe enough to bring it forward? In any protected class, they always have to balance out staying employed versus coming forward, and it’s a very personal choice, and I talk to a lot of people who have really compelling stories, but at the end of the day, they have to make that decision.”

For her part, Cotham strives to influence the decision-making of future managers to whom employees will report. She believes that her work as an educator matters, because she gets regular validation from former students, who say her course material takes on critical relevance once they’re on the job. And, in any case, she’ll keep teaching what she has for a decade now: “One thing I always say in class is that I recommend that employers, and they as managers ... always go above and beyond whatever the legal requirement is, because you’re going to get a really great plaintiff lawyer who wants to tweak the law and look at it from a new angle. And there are brilliant attorneys out there.”

Attorneys like those who’ve pursued Bill Cosby, Harvey Weinstein, and Steve Wynn.

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