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

liability questions from ones of employer fault and causation (and accompanying
common law tort defenses 119 ) to worker need. While there is significant variance across
states, they now cover most workplaces, providing workers with a safety net. 120
Initially, workers’ compensation was designed to address industrial accidents. As
John Fabian Witt observes, “Nineteenth-century observers believed both that the number
of accidental injuries was increasing and that the cause of the increase was the
mechanization of production.” 121 Coal mining and railroads topped the list for workplace
accidents, followed by logging, bricklaying, and masonry. 122 These industrial accidents
devastated not only the worker, but also their families. “Work accidents, it seemed,
threw the ambiguous status of the industrial worker into bold relief, compelling victim
and observer alike to ask hard questions about the relationships among capital, labor, and
the public.” 123 Of course, as the title of Fabian’s book, Crippled Workingmen and
Destitute Widows, suggests, all of this was intensely gendered. The jobs that dominated
the public and regulatory imaginary as “dangerous” were ones limited to male workers.
Similarly, the ideal of a worker who would provide the sole or primary “family wage”
was imagined to be a male head of household. Hence, in its initial formulation, workers’
compensation was actually legally and culturally conceived as workman’s
compensation. 124
Operating alongside state workers’ compensation statutes are federal health and
safety regulations. Following Macklin’s schema, workplace risk can be divided along
two axes, “danger,” or safety, and “dirt,” or health. The Occupational Health & Safety
Agency (OSHA) aggregates the two under its health and safety regulations. Enacted in
1970, Congress charged OSHA with “promulgating regulations, inspecting workplaces,
and prosecuting violations of its regulations and standards.” 125 Unlike workers’
compensation, which functions primarily as a compensation scheme, labor reformers and
Congress conceived OSHA explicitly to deter risk and achieve safer workplaces. 126
OSHA’s goal is to “assure so far as possible every working man and woman in the
Nation safe and healthful working conditions . . . .” 127 However, as some commentators
explain, because of the political difficulties it faces in enacting new regulations, OSHA
“commonly relies on . . . [its] general duty clause” in lieu of enacting specific
119 WORK LAW, supra note [x], at 946 (describing how fellow-servant rule, assumption of risk, and
contributory negligence operated as employer defenses to liability for workplace injuries).
120 “[T]he various state laws vary greatly in their details on such issues as what types of injuries are
compensable and how benefit levels are determined.” WORK LAW, supra note [x], at 953.
121 JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC: CRIPPLED WORKINGMEN, DESTITUTE WIDOWS, AND
THE REMAKING OF AMERICAN LAW 2 (2004). See also [add other cites]
122 Id. at [pincite].
123 Id. at [pincite].
124 It was also “raced.” [elaborate on exclusion of black families from these patriarchal and paternalist
norms]
125 WORK LAW, supra note [x], at 1000. [add citation to statute] Operating within the Department of
Labor, OSHA oversees private workplaces, regulating “more than 100 million workers in more than eight
million workplaces.” Id. at 1001. In addition, states are authorized to enact their own OSHA’s, using the
federal statute as a floor. Id. [add some other basic background on OSHA]
126 Of course, as an insurance scheme, workers’ compensation, too, has some deterrence function.
Employee pay-outs affect employers’ contributions. [add citation] See generally [add citations on debate
over deterrence effects]
127 29 U.S.C sect. 651(b).
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