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

ecome “the fastest growing category of workplace injury.” 135 Workers who confront
this type of workplace risk still struggle for regulatory and compensatory relief.
In addition, both workers’ compensation statutes and OSHA have developed
categories of inclusion and exclusion. For instance, professional athletes are statutorily
or functionally excluded from workers’ compensation in many states. Although
frequently injured and disabled from working, courts and legislators have this category of
worker does not warrant coverage because [fill in rationale]. 136 [add others] These
categorical inclusions and exclusions are most apparent, however, when it comes one
primary form of workplace danger identified by sex workers—violence.
Over two million workers are victims of workplace violence each year. 137 In fact,
homicide, not cave-ins or machine malfunctions, is the [fourth] leading cause of
workplace fatalities and the leading cause for women workers. 138 Yet, as numerous
commentators have noted, workplace violence seems to fall through the regulatory
cracks. OSHA is nominally charged with protecting workers from violence in the
workplace. Although the agency does not have specific standards for workplace
violence, its general duty clause imposes a broad obligation on employers to guarantee
their employees a safe working environment. However, as numerous critics have pointed
out, “there has been virtually no enforcement of this duty with regard to workplace
violence.” 139 As with other risk, violence is not equally distributed across workplaces—
workers in late night retail, i.e., convenience stores, health care, and service jobs are the
135 WORK LAW, supra note [x], at 1004.
136 See, e.g., Stephen Cormac Carlin & Christopher M. Fairman, Note, Squeeze Play: Workers’
Compensation and the Professional Athlete, 12 U. MIAMI ENT. & SPORTS L. REV. 95 (1994) (noting how
both workers’ compensation statutes and their own contracts limit professional athletes’ claims for injury);
Rachel Schaffer, Grabbing Them by the Balls: Legislatures, Courts, and Team Owners Bar Non-Elite
Professional Athletes from Workers’ Compensation, 8 AM. U.J. GENDER SOC. POL’Y & L. 623 (2000);
[GERALD HERZ & ROBERT C. BAKER JR., PROFESSIONAL ATHLETES AND THE LAW OF WORKERS’
COMPENSATION: RIGHTS AND REMEDIES; Frederic Pepe & Thomas P. Frerichs, Injustice Uncovered?
Worker’s Compensation and the Professional Athlete, in SPORTS AND THE LAW 18, 19 (Charles E. Quirk
ed., 1996) (noting misconception that all professional athletes are overpaid and arguing that professional
athletes need same legal protection as ordinary working people precisely because they do not earn large
salaries); Professional and Amateur Sports 15-1, 15-17, at 15.04 (Gary A. Uberstine ed., 1991) (contrasting
temporary disability benefits and permanent disability benefits)]
137 [add citation]
138 [add citations; compare to 1 million number]. Workplace violence comprises 15% of all violence in the
country. [add citation] Last decade, “[d]eaths resulting from workplace violence [were] the fastest
growing type of homicide in the United States.” Jules M. Davis, Potential Violence to the Bottom Line—
Expanding Employer Liability for Acts of Workplace Violence in North Carolina, 78 N.C.L. REV. 2053
(2000). “In 1993, the National Safe Workplace Institute estimated the total annual economic cost of
workplace violence to be $ 4.2 billion.” Id. at 2055. [find more recent stats: “In 1998 alone, 709
homicides, 1.5 million simple assaults, 396,000 aggravated assaults, 51,000 rapes and sexual assaults, and
84,000 robberies resulted from workplace violence.”]
139 Note, Sheryl L. Erdmann, Eat the Carrot and Use the Stick: The Prevalence of Workplace Violence
Demands Proactive Federal Regulation of Employers, 43 VAL. U.L. REV. 725, 727 ( 2009) (footnote
omitted). See also Davis, supra note [x], at 726-27 (“The Occupational Safety & Health Administration
("OSHA") holds employers to a general duty to shield employees from hazards and injury. However, there
has been virtually no enforcement of this duty with regard to workplace violence.”) (footnote omitted). In
addition, in 1995 there was an administrative law ruling that strict liability would not be imposed on
employers for hazards that were not recognized by the employers’ industry. [add citation]
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