1 Regulating Sex Work Adrienne D. Davis VERY ROUGH DRAFT ...

compensation statutes, as well as some collateral tort law on violence, and degradation,
much of which is the province of anti-discrimination law, mainly Title VII, but also the
Americans with Disabilities Act and the Age Discrimination in Employment Act. The
remainder of this Section gives an overview of how health and safety, workers’
compensation, tort, and discrimination law operate. It also briefly summarizes the
guidelines for determining who is an employee, which determines other, crucial benefits
and rights sex bargainers seek. In the end, although the “just work” claim implicitly
suggests a monolithic workplace and set of labor regulations, what the remainder of this
Section reveals is that workplaces are themselves quite diverse and subject to varying
regulation. In sum, the question isn’t whether sex can be work, but, rather, what kind of
work will it be considered?
A.
The sex as labor camp anticipates a host of benefits from legalized status and
regulation, primarily ameliorating the substantive work conditions for sex bargainers. As
an initial matter, at the most basic level, many seek legal recognition of sex workers as
employees, which would entitle them to basic employment benefits, including
unemployment, health insurance, retirement, social security benefits, workers’
compensation, and minimum wage and overtime. 90 Neither prostitutes, whose work is
illegal, nor dancers, whose employers often classify them as independent contractors,
qualify for these benefits under federal and state laws. In addition, the National Labor
Relations Act gives workers classified as employees the right to unionize and collectively
bargain for improved working conditions. Rather than relying solely on the state to
enforce minimal, universal benefits, collective bargaining allows workers to craft terms
and conditions of employment that are tailored to their needs. 91 As Sylvia Law notes,
“One of the most effective ways for commercial sex workers to promote decent working
conditions and protect themselves from violence, abuse, and health and safety hazards, is
to work in a collective context.” 92 Indeed, sex bargainers have sought to unionize in a
variety of contexts, although with little success. 93 Apart from the challenges of
90
Another conceivable benefit claim might be for protection under the Family and Medical Leave Act,
which requires employers to provide workers’ unpaid leave for medical reasons or to care for newborn
children or sick family members. When employees return they must be reinstated in same or equal position
with no loss of accumulated seniority or benefits. Margot Rutman examines the applicability of FMLA to
exotic dancers. She concludes that, even though, “[c]onceivably, the FMLA does apply to exotic dancers,”
because dancers may need more recovery time than other workers because of appearance and physical
requirements of the job, “the overall impact on exotic dancers is not as beneficial as it is in other
environments.” Rutman, supra note [x], at 535-36.
91
Unions have often played a critical role in raising and negotiating over issues of health and safety.
Because they implicate working conditions, safety issues are a mandatory subject of bargaining in
a unionized workplace, and employers are therefore obligated to provide safety information upon
the union’s request. . . . In addition, unions frequently negotiate for improved safety measures, or
alternatively, higher wages to compensate for the risks, through the collective bargaining process.
WORK LAW, supra note [x], at 946.
92
Law, supra note [x], at 598. See also Chun, supra note [x] (advocating unionization as best route to
empowerment for exotic dancers).
93
As detailed in Live Nude Girls Unite! documentary, the Lusty Lady was the first exotic dance club to
successfully unionize. [detail this and other efforts].
19