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

egulated by discrimination law, either sexual harassment or disparate treatment doctrine.
Assimilationists’ claim is that sex workplaces should be regulated “like any other
workplace.” Let’s see, then, how “other workplaces” are regulated.
B. Employee Status
The trilogy of laws collectively known as the National Labor Relations Act gives
workers the right to organize, collectively bargain, and strike, but limits this to those
deemed to be employees, excluding independent contractors. 112 Similarly, the Fair
Labor Standards Act and other labor doctrine limits to employees many of the other
benefits sex bargainers seek, such as minimum wage, retirement and health benefits,
social security, and unemployment. 113 Yet, the legal test for employee status remains
amorphous. As one casebook notes, “The question whether a worker is an independent
contractor or an employee cannot be answered in the abstract and there is no uniform
doctrinal test for status. Instead, the issue must be examined in the context of the
legislative purpose of the particular statutory rights at issue.” 114 [add discussion of
control test and other factors] Under such a test, litigation over employee status is
legion. 115
C. Health & Safety Regulations
Workplace health and safety are regulated primarily through two sets of doctrine,
state workers’ compensation laws and the federal regulations and guidelines enacted by
the Occupational Health & Safety Act. Workers’ compensation is, in effect, a state-based
insurance system that covers injuries that stem from “accidental injuries” that “arise out
of” or “in the course of” employment. 116 The system has two signal features. First, it
limits employer liability. Importantly, actual loss is not part of the equation, and in the
vast majority of states neither punitive damages nor emotional pain and suffering are
available. 117 In exchange, injured workers do not have to prove employer fault. 118
Instead, an administrative agency addresses claims, typically more rapidly and
inexpensively than litigation would. Workers’ compensation transforms workplace
112
“The theory of the Act was that requiring the exchange of information and establishing a therapeutic
outlet for discussion would encourage employers and unions to resolve their differences through bargaining
rather than through the exercise of economic weapons (the strike and the lockout).” WORK LAW: CASES
AND MATERIALS 2d edition 21-22 (Marion G. Crain et al eds., 2010) [hereinafter WORK LAW].
113
[add citation]
114
WORK LAW, supra note [x], at 74.
115
[add citations]
116
MARION CRAIN ET AL, WORK LAW: CASES AND MATERIALS 2d ed. [pincite] (2010) [hereinafter WORK
LAW] (describing different states’ statutory language). There are some federal iterations as well. See, e.g.,
Federal Employees’ Compensation Act, 5 U.S.C. sects. 8101-93 (federal employees); Longshore and
Harbor Workers’ Compensation Act, 33 U.S.C. sects. 901-50 (ship, harbor, and railroad employees); [add
others?].
117
“[T]he concepts of punishment and deterrence that lie behind punitive damages are absent from the
system.” WORK LAW, supra note [x], at 954. In addition, the exclusivity of remedies rules limit employees
to workers’ compensation claims, barring them from bringing claims through tort suits, which could yield
much greater awards. For further discussion of this doctrine, see infra note [x].
118
See, e.g., WORK LAW, supra note [x], at 953 (it is a “fundamental compromise—no fault compensation
in exchange for limited liability”).
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