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

from a “cost of accidents” perspective, the operator who “create[] the sexualized
environment is on notice that customers will likely harass her employees and has the
means to prevent and correct such harassment” 283 Finally, McGinley notes the class
discrimination lurking in the assumption of risk defense. The best economic option for
some working-class women may be to work in “sexy” work environments, and
assumption of risk doctrine imposes a penalty on them for trying to find economic
security. 284285
2. Disparate Impact
That leaves disparate impact discrimination claims. [fill in] As described above,
racial discrimination against sex workers is present not just in hiring but terms and
conditions of employment such as assignments of shifts, lucrative assignments such as to
private lounges, and referrals to desirable customers. In addition, there is the expectation
that racial or ethnic minorities will perform racial fantasies. In the context of exotic
dancing, Siobhan Brooks notes [add quote]. 286 Brooks and others contend this
discrimination violates Title VII and should be enjoined by courts. Can someone
legitimately prefer one sex worker to another based on appearance? If so, what role does
race play? This Section attempts to answer this vexed question.
On its face, the argument to apply anti-discrimination norms to sex work is an
attractive one. The assimilationist claim is very strong. As one leading sex theorist
argued, lawyers no different than prostitutes or club dancers in that “Law firms aren’t
allowed to hire only white lawyers on the ground that most of their clients are white and
would prefer to work with lawyers of the same race, and I doubt that courts would allow
that excuse if any other racial or ethnic group were involved. So why not apply the same
reasoning to sex and sexual services?” 287 Brooks, who led the first Title VII suit brought
by dancers, concurs: [add quote]. In this view, the assimilationist claim is very strong.
Sex work is no different from other service jobs in which anti-discrimination norms bar
283 McGinley 67
284 McGinley 90
285 McGinley’s approach also challenges the hardline drawn by Kimberly Yuracko, who also takes
sexual contexts into account in assigning workplace liability. In assessing disparate treatment doctrine,
Yuracko draws a clear line dividing workplaces that provide sexual gratification from those that provide
only sexual titillation. In contrast, McGinley rejects Yuracko’s “plus-sex” binary/dichotomy in favor of
more nuanced consideration of how sex and emotional labor are at work, finding more of a continuum.
The common thread among these jobs is that either the job or the environment in which the job is
performed is sexual. All of these women either trade on their sexuality or sell sex outright at
work. But sexuality is not the only job requirement. Each job has other requirements, some
gendered and some not. Moreover, in varying degrees, [add] require the worker to compromise
her own emotional independence and to engage in emotional labor, managing the emotions of the
customers to elicit a certain response. While differing in intensity and degree of managerial
supervision, this emotional labor resembles the behavior expected of flight attendants, fast food
workers, insurance salesmen, and paralegals . . . . Requiring emotional labor in service jobs blurs
the line between jobs in sexualized industries and those in non-sexualized industries.
McGinley, supra note [x], at 89.
286 Russell Robinson has made similar observations about acting. notes this in expectations of colored
actors to perform in ways that satisfy stereotypes @ 18) 286
287 [where is this quote from?] 229 (footnote omitted).
48