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

Hence, privacy and sexual gratification are noteworthy as the only areas of Title VII
where customer “tastes for discrimination” trump workers’ rights to equal treatment. 172
Importantly, though, employers cannot defer to their own or their customers’
racial preferences or biases. Unlike sex, neither race nor disability has a bfoq exemption.
The standard for disability is that employers must make “reasonable accommodations”
and not deny an opportunity to an otherwise qualified individual. 173 And race is
straightforward: [add judicial quote re no bfoq for race]. Yet, when it comes to
“authenticity,” there appear to be some implied bfoq’s for race in employment. For
instance, commentators have speculated that law enforcement can fairly limit undercover
agents by race, i.e., limit Klan infiltration to white officers. 174 There also seem to be
implied exemptions in the appearance-industries. Most notably, Russell Robinson and
Michael J. Franks have both observed that race seems to enjoy an implied bfoq for race in
the highly influential and profitable filmmaking industry. 175 Writing in 2001 and 2007,
neither author found any litigation regarding the very prevalent racial preferences in
casting decisions. 176 As Robinson observes, “Indeed, when it comes to casting, an entire
industry effectively disregards Title VII.” 177 Noting the prevalence of racial
specifications in casting breakdowns, 178 he continues, “the EEOC carves out casting as an
arbitrary exception to the normal requirement that an applicant be considered as an
individual and not saddled with group-based stereotypes and the ban on catering to
sexual gratification business. “Businesses explicitly selling sexual titillation may do so only by positioning
themselves within the traditionally marginalized and stigmatized sex industry. Businesses that seek to bring
sexual titillation into the mainstream by combining sexual titillation (and sex-based hiring) with the sale of
other goods and services are not permitted to exist.” Id. at 196. Ann McGinley, on the other hand, is not as
sanguine about the plus-sex/sexual gratification dichotomy. McGinley finds “[t]he lines between sex work,
work in a highly sexualized environment, and other work requiring employees to ‘sell’ their sex or gender
to give up control over their intimate emotions are hazy.” McGinley, supra note [x], at 95 (footnote
omitted). Instead, “[o]ften, a woman’s job prospects and ability to advance within an enterprise are linked
to her setting the proper gender tone on the scale of commodification.” Id. at 94 (footnote omitted).
172
Kimberly Yuracko, however, disputes this as the real reason for the distinction. Instead, she contends
[add].
173
[add citation]
174
Some have also suggested that newspapers might send white reporters to interview Klan members. [add
citations] Russell Robinson observes that “A few courts have suggested without holding that Title VII
could permit a BFOQ for race in certain contexts, like police forces and prison security.” Russell K.
Robinson, Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms, 95 CALIF.
L. REV. 1, 41 (2007).
175
Michael J. Franks, Justifiable Discrimination in the News and Entertainment Industries: Does Title VII
Need a Race or Color BFOQ?, 35 U.S.F. L. REV. 473 (2001); Robinson, supra note [x].
176
Franks, supra note [x], (“There is not a single reported case in which an actor has sued a director for
race-based casting decisions, even though it is common.”); Robinson, supra note [x] (noting his research
“did not turn up a single published decision in which a court adjudicated an actor’s Title VII claim of race
or sex discrimination.”). [fill in Hunter Tylo pregnancy discrimination suit; jury decision for $4.8 million,
which many speculate was based on Spelling’s accommodation of previous pregnant actresses; (cite
Russell’s UCLA brief)].
177
Robinson, supra note [x], at 5.
178
Robinson contrasts race and sex specifications in casting breakdowns. “This common sequencing
suggests that sex forms the foundation of a character more than the traits that follow, such as race and
age.”; 45.2% of breakdowns had racial code, versus 94% for gender and "”women over 40 [who] are as
much a minority as any ethnic group.”” Robinson, supra note [x], at 19.
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