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

most vulnerable to workplace violence. 140 Accordingly, OSHA has issued specific
guidelines and recommendations for two of these high-risk industries, health care and
social service workplaces and late-night retail stores. 141 Still, these guidelines remain
advisory only, and no workplace is subject to mandatory rules from OSHA regarding
preventing workplace violence. 142
In the absence of leadership by OSHA in deterring workplace violence, workers’
compensation has emerged as the “primary compensatory remedy.” 143 Workers’
compensation operates as almost the converse of OSHA: while OSHA has issued
guidelines covering only two high-risk industries, 90% of workers nominally are covered
by workers’ compensation for workplace violence. 144 Yet, state systems have developed
their own doctrinal exclusions, which disproportionately affect some workplaces where
violence is a dominant risk. Ironically, while OSHA identifies all-night retail as a highrisk
industry, many courts have denied workers’ compensation claims for convenience
store assaults as not meeting the requirements that injuries “arise out of” or “in the course
of employment.” 145 [check on other workplace assaults] In some jurisdictions, this has
emerged as a categorical exclusion. 146 For instance, [describe Alabama exclusions].
Moreover, under workers’ compensation there is no recovery for emotional suffering,
which severely limits relief for some workplace injuries. 147 Consider for a moment a
form of violence prevalent in both sex businesses and convenience stores: sexual
assault. 148 Many courts have found that workplace rapes do not “arise from the
employment” and hence are exempt from workers’ compensation benefits. 149 Moreover,
a rape victim may not suffer lasting physical impairment, required for workers’
compensation benefits. The emotional suffering many sexual assault victims experience
is excluded. 150 In sum, workers’ compensation excludes some of the most devastating
140
For homicide, “most of the victims work in retail trade, security services, or transit services
occupations.” Jane Lipscomb et al, Preventing Injuries & Abuse: Perspectives on Legal Strategies to
Prevent Workplace Violence, 30 J.L. MED. & ETHICS 166, 166 (2002). On the other hand, “[t]he majority
of non-fatal workplace injuries occur in settings in which the victim and the attacker are in a custodial or
client-caregiver relationship, such as in health care or social services.” Id. These statistics also vary
according to geography. For instance, in New York City, in [dates] the workers at greatest risk from
violence were taxi drivers and grocery store workers. Susan L. Pollett, Violence in the Workplace: Are
Employers Legally Responsible?, 22 WESTCHESTER B.J. 133, 138 (1995).
141
[add citation]
142
“Many groups, including labor unions, police departments, industry representatives, professional safety
associations, and federal and state agencies, have begun to recognize that Occupational Safety and Health
Administration (OSHA) inspectors should use the general duty clause of the Occupational Safety and
Health Act (OSHAct) as a cudgel to force employers to address workplace violence more effectively.”
Robert S. Goldberg, Comment: Victims of Criminal Violence in the Workplace: An Assessment of Remedies
in the United States and Great Britain, 18 COMP. LAB. L. 397, [add pincite] (1997).
143
Goldberg, supra note [x], at (footnote omitted).
144
[add citation]
145
See, e.g., WORK LAW, supra note [x], at 974-75.
146
See, e.g., Goldberg, supra note [x], at [pincite].
147
“In cases of workplace violence, where injuries are emotionally damaging to the victim, workers'
compensation is wholly inadequate as a remedy.” [cite].
148
[add statistics on rape and rape/homicide in convenience stores]
149
It is an interesting question whether court would be more likely to conclude that sexual assaults in sex
workplaces meet the link to employment. This is addressed infra notes [x] and accompanying text.
150
[add citation]
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