Weighing In On Nevada Gaming Control Board’s Proposed Regulation Regarding Sexual Harassment

By Kamer Zucker Abbott

May 8, 2018

On May 3, 2018, the Nevada Gaming Control Board (NGCB) held a workshop to receive public input regarding its proposal to amend Nevada Gaming Commission Regulation 5 to require licensees’ adoption of certain procedures, policies, and training regarding sexual harassment in the workplace.

KZA opposes the NGCB’s proposal for several reasons. As such, KZA Partner Jen Sarafina attended the workshop to present our position. The substantive portion of Ms. Sarafina’s remarks are set forth below:

First, these regulations appear to be a knee-jerk response to media coverage of allegations not tested or proven by any court, agency, or trier of fact.

Second, this would add another duplicative and unnecessary layer of regulation and reporting upon licensees, which would result in a waste of governmental resources in monitoring that layer.

But most importantly, these regulations are simply not necessary. The Nevada Equal Rights Commission (“NERC”) and the U.S. Equal Employment Opportunity Commission (“EEOC”) already have regulations and enforcement mechanisms to address not only sexual harassment – which is the only type of discrimination or harassment targeted by the current proposed regulation – but a variety of harassment and discrimination including race, age, disability, and gender identity – just to name a few. These agencies exist solely for these purposes.

Indeed, existing federal and state statutes and regulations – as well as the vast body of case law applying them – already cover everything listed in the proposed regulation. For example, I can confidently state that gaming employers already have handbooks and policies declaring without equivocation that sexual harassment will not be tolerated. Similarly, sexual harassment policies already list several different people to whom employees can report alleged harassment.

Moreover, existing law requires employers to promptly investigate allegations of sexual harassment, and the EEOC and NERC already require employers to keep separate files for such investigations and to keep them confidential to the fullest extent possible. Again, every gaming employer we’ve worked with already has these policies and practices in place.

So, what’s the utility of this proposed regulation? The Nevada Gaming Control Board would be yet another agency reviewing gaming employers’ efforts and judging whether or not they are sufficient?

What standard would be applied in making those judgments? The other administrative agencies already have a body of regulations, guidance and case law outlining the burdens and sufficiency required under current law. That expertise lies with the EEOC and NERC. That isn’t the Gaming Control Board’s area of expertise.

In sum, we understand the concern about sexual harassment – and any type of harassment – in the workplace. However, other administrative agencies are already charged with addressing these issues, and in the event that those agencies choose not to pursue litigation, individuals have private causes of action as well.

We encourage Nevada employers subject to Gaming Control regulations to voice their positions on this issue. As always, we will keep you posted on updates regarding the NGCB’s efforts in this area.