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

When confronting harassment by customers, the fact finder should therefore consider
the three-way relationship between the supervisor, the customer, and the worker. If
the supervisor punishes or otherwise discriminates against women who refuse to
accept harassing customer behavior or if there is an expectation that the employee not
complain or respond negatively to the customer’s harassment, the jury should
consider this fact as evidence that the woman did not welcome the behavior, even
though she may have acquiesced to it. 275
In the end, “[b]ehavior that creates a cause of action for sexual harassment in a nonsexualized
workplace may actually constitute agreed-upon terms or conditions of the
employment of workers in sexualized workplaces,” 276 but employers still have an
obligation to police behavior that is not an expected part of the job.
McGinley’s approach differs starkly from that of other commentators’. For instance,
some have contended that, by its nature, sex work should be exempt from sexual
harassment liability. In this view, exotic dancers, prostitutes, and other sex workers have
“assumed the risk” of harassment, which should excuse employers from liability. 277 [add
quote]. 278 Alternatively, Kelly Cahill characterizes their comparatively generous tips as
“combat pay.” 279 McGinley opposes the assumption of risk and combat pay defenses.
She charges that exempting these workplaces from liability for sexual harassment
constitutes a windfall for employers: “advocacy of the assumption of risk defense fails to
recognize that employers whose businesses rely on the display of masculine practices
consciously create and benefit from an environment in which harassment is likely to
occur.” 280 Because sexual commercial establishments rely on the fantasy that “the dancer
is sexually and personally interested in the customer” to maintain their profits, “[t]o
maintain this fantasy, the club walks a fine line between permitting the customers to
believe that the exotic dancers are completely available to the customers and protecting
the dancers from sexual harassment and criminal assault.” 281 The assumption of risk and
combat pay constructions “it place[] on women the responsibility of regulating the
sexualized aggression of heterosexual men without placing any responsibility on the
individual men, on the employer, or on society in general.” 282 Reinforcing this point,
274 Anna Nicole Smith: “consensual”; clubs might ban it though, or leave it up to the worker
275 McGinley, 99
276 McGinley 68
277 See, e.g., Joshua Burstein, Testing the Strength of Title VII Sexual Harassment Protection: Can It
Support a Hostile Work Environment Claim Brought by a Nude Dancer?, 24 N.Y.U. REV. L. & SOC.
CHANGE 271 (1998); Kelly Ann Cahill, Note, Hooters: Should There be an Assumption of Risk Defense to
Some Hostile Work Environment Sexual Harassment Claims?, 48 VAND. L. REV. 1107 (1995); Jeannie
Sclafani Ree, Redressing for Success: The Liability of Hooters Restaurant for Customer Harassment of
Waitresses, 20 HARV. WOMEN’S L.J. 163 (1997).
278 See also As Yuracko says, “it is unlikely that if a strip club was held liable for not preventing sexual
harassment of its strippers by customers it would be ordered to have its strippers wear clothes.”
279 [add the relevant quote].
280 McGinley, supra note [x], at 91.
281 78 (footnote omitted);] Mcginley 81; Emotional labor point: In fact, “[i]f they were
not prostitutes, may of htem state that they would like ot be social workers, nurses,
teachers, or day care professionals.” McGinley 85 fno
282 McGinley 91. [here?] See also Yuracko 229 (“Even if the law allows businesses to create jobs that
involve selling sex appeal, why is it that so often women alone are perceived to have that sex appeal?”).
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