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

Gender stereotypes provide a fascinating case in point. Employer efforts to
justify discriminatory practices based on gender stereotypes, including both nurturing and
sexual titillation, were rejected by courts in a famous series of 1970s cases. Faced with
airlines’ efforts to limit the position of flight attendant to young, “attractive” women,
courts held they could not exclude men from the position of flight attendant nor subject
women flight attendants but not men to weight restrictions. 166 Yet, the sex bfoq remains
robust in other service sectors. 167 Courts have upheld gender as a valid criterion for
discrimination for nurses who work in labor and delivery rooms, nursing home attendants
who bathe and dress patients, restroom attendants, and, in some cases, for prison
guards. 168 Importantly, the courts cite as the relevant factor the employer’s reasonable
regard for its patrons’ privacy. 169 A second exemption is for workplaces where the
business is “sexual gratification.” Courts have upheld the right of employers in the sex
business to employ only women (or, presumably, only men). 170 Yet here, courts are
careful to distinguish businesses that sell sexual gratification from those that sell sexual
titillation along with another service, such as meals, air flights, etc. Employer efforts to
assert bfoq’s in what Kimberley Yuracko terms “plus-sex” businesses rarely win. 171
certain goods and services. A business will not stay afloat if there is no customer demand for its good or if
its service does not meet customer expectations. Businesses are also shaped, however, by customer
preferences for certain types of employees or service providers. Customer preferences to have certain
services provided by employees of a particular sex may, for example, be grounded in (1) a belief that
individuals of one sex are superior in all or particular activities to individuals of the other sex, (2) socially,
or perhaps biologically, conditioned feelings of discomfort at having certain services performed by an
individual of a particular sex, (3) a desire to experience or avoid sexual titillation, or (4) a sense of socially
or aesthetically appropriate gender roles.” Yuracko, supra note [x], at [pincite]. Of course, many
businesses may use their workers to try to link their products to an idea or image. Frequently, this is an
effort to turn a product into a service. [add examples; thinking of Saturn]
165
Marion Crain describes employer efforts to differentiate their business and create consumer loyalty
through the “brand.” [fill in] See, e.g., Dianne Avery & Marion Crain, Branded: Corporate Image, Sexual
Stereotyping, and the New Face of Capitalism, 14 DUKE J. GENDER L. & POL’Y 13 (2007) ([add
parenthetical quote]). See also Marion Crain, Managing Identity: Buying into the Brand at Work, 95 IOWA
L. REV. 1179 (2010) (describing how employers use “brand” to induce worker loyalty in absence of
traditional incentives such as retirement benefits and job security).
166
[add citations]
167
[only limited success in manufacturing, etc]
168
For privacy, Yuracko develops a spectrum from touching (labor room and other care givers) to seeing to
embarrassment but not touching or seeing (rest-room attendants). She contends [fill in]. Yuracko, supra
note [x], at [pincite]. See also Frank, supra note [x], at [pincite] (noting that “within the privacy cases, the
courts deem the interests of ordinary customers in their privacy to be less than those of patients in nursing
and health care facilities”).
169
“The courts that have permitted the privacy-based sex BFOQ believe that the very sex of the excluded
individuals prevents them from giving customers adequate privacy. Accordingly, the test for the privacybased
sex BFOQ is whether the excluded applicants can satisfactorily respect the privacy of customers in
the performance of the job.” Franks, supra note [x], at 490. While Yuracko notes the “symmetry” in
privacy preferences, Franks notes that the privacy bfoq defense typically only is applied to women’s
privacy preferences, not to men’s. Id. at [pincite]; Yuracko, supra note [x], at [pincite].
170
[add citations, including dicta from Wilson v. Southwest alluding to permissibility of gender
discrimination in strip clubs]
171
“Attempts to discriminate on the basis of sex in hiring for plus-sex businesses are virtually always
unsuccessful.” Yuracko, supra note [x], at n.28. She claims that airlines and related cases demonstrate that
“courts simply do not permit employers to explicitly sell sexual titillation along with other goods and
services.” Id. at [pincite]. Yuracko also believes that most employers would not risk association as a
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