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

and other employment terms on the basis of race, sex, religion, color, or national
origin. 157 Passed shortly after Title VII, the Age Discrimination in Employment Act of
1967 bars employment discrimination against workers aged 40 or older. 158 The final
piece of employment discrimination legislation came in 1990 with the Americans with
Disabilities Act (ADA), a broad mandate prohibiting discrimination, including in the
workplace. 159 Taken together, these anti-discrimination laws sharply limit the extent to
which employers can indulge their preferences and biases, and, equally crucially, the
preferences and biases of their customers. Yet, there are some important exceptions that
do not operate equally among the legislation.
Although regulated under different statutory regimes, age, religion, national
origin, and sex all are subject to a bona fide occupational qualification exemption (bfoq).
This means that employers can discriminate if the characteristic is related to the “central
mission” or “essence” of the business. 160 Classic examples of age bfoq’s include
retirement ages for bus drivers and airline pilots, both of which courts have upheld as
[add quote]. “Authenticity” of a service or product is another bfoq. Religion and
national origin are most commonly exempted under authenticity bfoq’s. Hence, the
Catholic Church can hire only Catholics (and men) as priests, and Chinese restaurants can
hire Chinese chefs. 161 Authenticity also reaches gender, as filmmakers can hire men to
play male parts. 162 In fact, the gender bfoq for Hollywood is even included in a comment
in the EEOC Guidelines. 163
Apart from authenticity, which gender shares with religion, national origin, and,
presumably, age, gender has developed its own, complex, jurisprudence on bfoq’s. As
Kimberly Yuracko points out, this is especially apparent in the service sector. Unlike,
say, manufacturing, where customers typically differentiate among products, in service
work, customers can develop strong preferences for particular kinds of workers or
characteristics. 164 Employers develop and exploit these preferences to market their
business, in ways the law has deemed both legitimate and illegitimate. 165
157 [add citation]
158 [add citation]
159 [add citation]
160 Yuracko defines the “essence” of a business as follows: “inherent meaning, shared social meaning,
employer-defined and customer-defined.” Yuracko, supra note [x], at [pincite].
161 In one controversial decision, the religion bfoq was even extended to hiring a philosophy professor at a
religious university. [add citation and articles discussing] Consistency, however, is required. Hence, a
Chinese restaurant that hired French, Italian, and Japanese chefs could not then exclude Mexican
applicants. [add citation]
162 Mary Anne Case called it “bizarre that sex is considered a BFOQ, in the interests of ‘authenticity or
genuineness,’ for the job of actor or actress . . . . After all, the very essence of this job is to be something
one is not. All that a producer should be allowed to require is that the pretense be convincing.” Mary Anne
C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and
Feminist Jurisprudence, 105 YALE L.J. 1 (1995). Russell Robinson elaborates, “Actors generally do not
face authenticity requirements regarding many character traits; for example, an actor need not be gay or
have a disability or pregnant in order to play a character with that trait. Indeed, good acting is often defined
as the ability to pull off a role quite different from the actor’s own identity.” Robinson, supra note [x], at
31-32.
163 The Guidelines purport to authorize sex discrimination in casting insofar as it is “necessary for the
purpose of authenticity or genuineness.” [add citation]
164 Kimberly Yuracko notes, “Two types of customer preferences define each business: preferences for
products and preferences for people. Businesses are shaped most obviously by customer preferences for
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