Dolores Y. Leal, author of “Litigating Sexual Harassment and Sex Discrimination Cases," has specialized in employment discrimination, wrongful termination and sexual harassment law for over 30 years. The highly effective litigator loves doing the “feel-good work,” as she calls it, and firmly believes in representing those who have suffered from prejudice and/or harassment in some way, shape or form.
Leal served in the federal government for 14 years at the Equal Employment Opportunity Commission; she started as a secretary but was quickly moved up to investigator. At the urging of her colleagues, she went to law school, and continued at the EEOC as a trial attorney. Since joining private practice in 1991 at Allred, Maroko & Goldberg (founded by the legendary women’s rights advocate Gloria Allred), she’s continued her impassioned work fighting workplace discrimination of people based on their gender, age, color, religion, race, national origin, disability or retaliation.
In a highly publicized case over pregnancy discrimination, Leal helped reformat the sexual politics of Hollywood for women in the groundbreaking and precedent-setting Tylo v. Spelling Entertainment Group, and the subsequent appeal – a case that would forever shape wrongful termination laws in more ways than one.
Leal has kept busy during the pandemic, saying that stay-at-home orders didn’t stop or slow discrimination or harassment in the workplace. From her long view of this work, Leal contends that we have a way to go, and change must start from the top.
Lawdragon: Is there a particular case that stands out for you from your time at the Equal Employment Opportunity Commission?
Dolores Leal: While I was at the EEOC, one of the highest achievements was litigating a case against the Hilton casinos in Las Vegas. We represented more than 30 individuals, all men. Most of them were dealers. Some were what we called “floor persons” or supervisors. The casino was losing money for a number of months, so management decided that the employees who had been there the longest were stealing from the house, because they would know how. So they arbitrarily chose a date, and anyone hired prior to January 1, 1974 was terminated.
LD: Who was terminated then?
DL: Older persons, and only men because women were not hired back then as dealers. So it was an age and sex discrimination case that was tried in federal court over a four month period. It was being handled by a private lawyer, John McCarthy, who's now since passed. John asked the EEOC to intervene and we tried the case together. I remember we won about $45M, which was a really big win at the time, in 1989. The other side appealed it and it went to the Ninth Circuit Court of Appeals. I left the EEOC in ’91 and the court of appeals decided the case in ’94, 10 years after our clients had been fired. It was a long, drawn out litigation, but well worth it because we were able to achieve some justice for our clients. That was a very interesting case. It was a disparate impact case, adverse impact case, which is uncommon really. We used an EEOC statistician during the trial. What we argued was that there was a neutral decision, i.e., selecting everyone who was hired prior to January 1, 1974, which had an adverse impact on older employees who happened to be all men
LD: Can you talk more about what that means? Disparate impact case?
DL: We saw a lot of adverse impact cases back in the early days when I first started with the EEOC. It means you’re being treated differently in comparison to others of a different race or gender or age. If you had, for example, weight requirements, where you had to weigh a certain amount of pounds in order to be hired, or height requirements. Those types of requirements, although neutral on their face, impacted certain groups of individuals, namely women and persons of color.
LD: Is it fair to say that we see less of those adverse impact cases now because the law has been clarified through litigation such as this case?
DL: I think it’s fair to say that’s part of the reason. I've been in private practices for 30 years now, and I cannot think of an adverse impact case that I've tried.
LD: Can you talk to me about the case you handled for the actress Hunter Tylo?
DL: One of the highlights of my practice at Allred, Maroko & Goldberg was litigating the Hunter Tylo case. Hunter is an actress who was hired by Aaron Spelling to be on the show “Melrose Place.” She was going to be Heather Locklear's nemesis, if you will. After she was hired, she learned that she was pregnant. Then her manager advised Spelling’s people that she was pregnant and they sent her a letter: Congratulations on your pregnancy, however, the role for which you've been hired is not compatible with your pregnancy. You're being terminated, we don't need you any more.
We sued under state statute, the Fair Employment and Housing Act, for pregnancy discrimination. The reason this case is particularly important is because when the other side took Hunter Tylo’s deposition – back then the depositions weren't videotaped, so you really couldn't see or hear what was going on – but during the deposition, the attorney representing Spelling started asking Hunter very, very private questions. Questions such as, "Well, isn't it true that your husband had a vasectomy and that you couldn't get pregnant? Isn't it true that you weren't even trying to get pregnant?"
LD: Really. And what followed?
DL: A lot of questions similar to that, and my objections. “Invades my client's right of privacy and that of her husband's right of privacy, Hunter, do not answer.” I don't know how many times I did that, a good 10, 15 times, maybe even more. There were a lot of questions that I felt were invasive of her right of privacy or her husband's right of privacy. Questions about whether it was true that she went to India, and had a “friend” there. It was stuff the defense attorney apparently had read in these magazines which follow celebrities. So I kept instructing her not to answer. The lawyer filed a motion to compel my client to answer these questions and also sought sanctions against me for instructing her not to answer.
LD: Did it work?
DL: Yes, the judge agreed with him. So I took it up on appeal and the court read the transcription of the deposition. The question, the answer. The question, the answer. The colloquy between Spelling’s attorney and I. The court of appeals laid an important precedent with that decision, because the court found that just because a plaintiff files a claim for discrimination doesn't give the defendant, the employer, a license to go on a fishing expedition during discovery. This decision in this case, Tylo v. Superior Court, has helped plaintiffs' lawyers many times. It's helped me whenever I'm involved in discovery disputes, where the other side wants information from my client that I believe is not relevant to the underlying issue. And if the employer seeks private information, there's a heightened standard in terms of them being able to prove that it's really relevant to obtain.
LD: Is that something that happens frequently? That an actress gets pregnant and loses a job because of it?
DL: When I was at the EEOC before I became a lawyer, I was an investigator and I was on the entertainment task force. Clarence Thomas, who of course is now in the U.S. Supreme Court, was the Chair of the EEOC at the time and he wanted the LA office to investigate the entertainment industry. I remember it was so difficult getting people to speak because they were afraid of retaliation. Hunter was also afraid of the backlash against her if she sued Spelling. Spelling, of course, was a big, big player in the entertainment industry. But what happened is that women thereafter came to support her and thank her and for what she did. Interestingly enough, after Hunter was terminated, she was replaced by another actress, Lisa Rinna. And Lisa and Heather Locklear both became pregnant while on “Melrose Place” and nothing happened to them – they were not terminated like Hunter Tylo
DL: It was a challenging case to litigate, but the result was worth it. We stood up for the rights of pregnant women, which made a measurable impact in Hollywood.
LD: You also have a background with sexual harassment and sexual discrimination cases in the employee setting. Can you talk to me a bit about that? Is that still an active part of your practice?
DL: Very much so. Unfortunately sexual harassment is still alive. One would think that with the #MeToo movement that primarily men, because there are women too, but primarily men would know not to misbehave, and they still do. So yes, it's still a large part of our practice. I wrote a book many, many years ago, Litigating Sexual Discrimination and Sex Harassment Cases. They're difficult to litigate because our clients have to relive what they went through.
I remember one case in particular, this was probably 20 years ago, but my client was working for this company and she was a secretary to the vice president and her best friend also worked at the company as the secretary to the president. So you had the president and the vice president, and they were family members. Well, the vice president began sexually harassing my client. Initially verbally, asking her to go out, and she wouldn't. She was a single mom. They were both single moms by the way, and she wouldn't go out with him.
Then one day he said, I'm just going to call her Mary, “Mary, come to the conference room, I need you for something." She goes to the conference room. And what does he do? He rapes her. She came out, obviously very distraught, went to the restroom, cleaned herself up, went back, told her friend – her “best friend” – what had happened. Her best friend says, "Go home, take a shower, do what you need to do. I'll cover for you." After all of that happened, she contacted us. Now, I'm trying to reach this friend, this “best friend,” but she wouldn't return my calls. My client was beside herself. She says, "But she told me that she would stand by me." But this woman would not return my calls. I had no other choice but to take her deposition. I asked her, "Did Mary confide in you about what X did to her?” Did Mary tell you that X did Y to her?" All of her answers were "No." She didn’t see anything; she didn’t hear anything; or she didn’t recall.
LD: Oh wow.
DL: My client is sitting there just balling, balling. Re-victimized. Those are very, very difficult cases for that reason. Litigation takes a toll, a significant toll on my clients. Particularly in sex harassment cases, I believe.
LD: What happened with that case?
DL: It was resolved. About 90-95% of all cases get resolved before trial.
LD: That’s got to be such a challenge for you, too, to go through these narratives with clients who are suffering through these terrible moments all over again.
DL: The rewards are well worth it. When I speak to young law students and they want to know about employment law, my response is: This is what I call feel-good work. I get up in the morning and it feels good that I know I'm going to be helping people. Even though the world may not change, even though there may still be horrific people out there, you'll find that if you can represent someone and make their life a little bit easier, it's well worth it. That's what I tell these youngsters and it is feel-good work, and that's why I'm still doing it.
LD: How did you first get started in employment law?
DL: I graduated high school and I was ready to go to college. I got a call from the EEOC and another federal agency, I think it was the FAA, for an interview. The FAA wasn’t interesting to me, but the EEOC was different – helping persons who were discriminated against sounded much more interesting. So, I started working at the EEOC when I was 17. I turned 18 a month later. I started off as a secretary in 1976, then three years later in '79, I became, I think the youngest investigator in the history of the EEOC.
DL: While I was at the EEOC, people would say, "Dolores, you're too smart. You should go to law school." So I went to law school, I started in '84, finished in '87. Took the bar in February of '88. People ask me, "Would you ever consider going on the defense side?" In other words, representing employers. My answer was always: absolutely not. I understand employers need representation and it's good that there are some attorneys out there representing companies to ensure that they follow the laws and they comply with the laws. But there are just so many individuals in need of justice, and their stories will be forgotten without someone to fight for them. I love what I do for that reason.
LD: What are you seeing coming out of the pandemic in terms of employee litigation?
DL: Here in California we shut down March 13th, Friday the 13th. I remember we closed shop and we all started working from home because there was a stay-at-home order. Soon after, the first cases that we started seeing were cases where the employers began using Covid as an excuse to terminate employees they wanted to terminate for other reasons. I immediately had cases where my clients were fired purportedly because of the pandemic, purportedly because business was suffering because of Covid. The real reason, the true motive behind the decision to fire was, in one of the first cases retaliation. My client had been complaining about some illegal activity occurring at the workplace. Then Covid hit and the employer said, "You know what? Because of the pandemic. Business is slow." Luckily, my client was in a position where she was aware that business was not slow. She knew that money was still coming in. I spoke with witnesses who also had information and it was just a bunch of hogwash. It wasn't true. And that wasn’t the only employer using the pandemic as a pretextual reason to terminate my clients.
LD: And now?
DL: We're pretty much still handling the same types of cases we had before, wrongful terminations based on a protected categories: race, religion, color, sex, age, national origin, medical conditions, sexual orientation, disability, marital status, retaliation.. There are still a lot of sexual harassment cases. Before the lockdowns, we knew that come January of every year, there would be some sexual assault cases, women calling us because they were sexually assaulted during a company holiday party. That didn’t happen this year – employees were working from home
LD: What advice to you have to employers to stymie the flow and minimize these issues in our workplaces?
DL: It starts from the top. Companies need to set proper standards and repeatedly advise employees that “we don't tolerate sexual harassment,” and most importantly not just give it lip service.
Many years ago, I represented a group of women who were guards at a state facility, CDCR, the California Department of Corrections and Rehabilitation. They had previously worked at one facility, I'll call it facility A, and the wards that they were supervising were minors, ages age 16 to 20. At facility A, whenever one of the wards misbehaved and tried to do something sexual in nature to the female guards, the warden at that facility took immediate action. So the wards, these minors, knew that if they misbehaved, they were going to be in trouble. Those clients of ours later transferred to another facility. At the second facility, these wards were allowed to do anything and everything they wanted without suffering any consequences. They did some really horrific stuff to our female clients. The warden in charge didn't take any action. So, we sued. The message coming down from the top makes all the difference.