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

fewer opportunities, and less lucrative ones, than white dancers. Siobhan Brooks’ recent
study of three dance clubs in New York and Oakland found:
When women of color are working in predominately White clubs that offer more
security and are located in areas with higher property values, they often are paid
less than their White counterparts, marginalized as token hires, or employed in
lower-tier job positions. Women of color working in clubs predominately
employing people of color, may make good money, but are subject to unjust
working conditions, customer expectations that services will be cheaper, and
unsafe neighborhood spaces—erotic capital is not separate from institutions or
other forms of capital. 107
Thus, racial groups have very different erotic capital, and this translates into very
different work opportunities in sex markets. Assimilationists such as Brooks make much
of this disparity. She observes: “Racism against Black women in this industry is usually
viewed as normal because, like other appearance- based industries (such as modeling,
acting), the sex industry is based on ideas of customer taste and preference.” 108 Yet she
contends that racialized desire in the erotic industry is no less socially constructed than in
other areas of social interaction, and should be considered impermissible employment
discrimination under Title VII. 109 While less visible in the discourse, presumably older
sex workers and disabled ones experience discrimination, outside of niche or fetish
markets. 110
Degradation of sex workers then takes two forms. Women working in sex
markets are routinely subject to a degree and form of gendered harassment that is
exceptional in other contemporary, domestic workplaces. In addition, disparate treatment
of women with non-normative bodies is pervasive, resulting in hierarchies along lines of
race, age, and ability. 111 Legal norms have shifted in the last forty years, to hold
employers liable for discriminatory practices, including, of course, disparate treatment
and harassment. Assimilationists want access to this set of rules.
In sum, in addition to giving sex laborers the ability to enforce their contracts and
to access basic employee benefits, assimilationists anticipate that recognizing sexual
labor as legitimate work would also give workers protection from dangerous, dirty, and
degrading workplaces. As this next part shows, dirt and danger concerns typically are
regulated in tandem through health and safety regulations. There are some separate,
common law tort rules pertaining to workplace violence, but much of it falls within
workers’ compensation or OSHA regulations. Degradation, as discussed, typically is
107 BROOKS, supra note [x], at 3-4, 101. She finds that clubs where women of color are concentrated have
the worst terms and conditions, e.g., higher stage fees, more harassment, and coerced prostitution. See also
Tanya Kateri Hernandez, Sexual Harassment and Racial Disparity: The Mutual Construction of Gender
and Race, 4 J. GENDER RACE & JUST. 183 (2001) (discussing how race is a work in sex tourism industry).
108 BROOKS, supra note [x], at 99.
109 See also Rutman, supra note [x], at 534 (“Despite the seemingly obvious requirement that dancers be
attractive, Title VII protections still adhere to prevent discrimination against protected classes.”). [See infra
notes [x] and accompanying text.]
110 In fact, the propensity for marginalizing older dancers was one point of contention at the Lusty Lady.
[elaborate how older dancers were treated] See, e.g., Emens, supra note [x], at 1343-45 (describing
“acrotomophilia,” or desire for amputees).]
111 For instance, Margot Rutman speculates: “Obese exotic dancers might be protected under the ADA from
discrimination in some instances.” Rutman, supra note [x], at 534 n.165 [add discussion on dignitary
harms] [disparate impact?]
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