Testing the Strength of Title VII Sexual Harassment Protection: Can it Support a Hostile Work Environment Claim Brought by a Nude Dancer

Introduction

The job we perform influences nearly everything about out lives: where we live, how we dress and style our hair, when we sleep, [and] whom we have as friends . . .. It determines our status or lack thereof in the community, it fuels how others see us, and how we see ourselves.

Thus Lynn Snowden explains her journey of undertaking nine different occupations in one year. In her book, Snowden asks, “Where would I notice more sexual harassment–as a cocktail waitress or as a stripper? Where is the power in working in a uniform, a business suit, or nothing at all? Which jobs would be the most lucrative, the most fun, the most demanding, the most demeaning?”

This note will focus on whether or not nude dancers3 should be entitled to protection under Title VII of the 1964 Civil Rights Act, particularly when they face hostile work environment sexual harassment by non-employees, i.e. customers. The introduction briefly describes the industry and surveys the academic and political debate about the value of this industry for women.

Section I explains the basic law of hostile work environment sexual harassment and employer liability for non-employees’ actions. Relevant legal issues are discussed, including the requirement that an employee be required to wear a provocative uniform, the defense of bona fide occupational qualification (“BFOQ”), borrowed from the hiring context, and the “essence-of-the-job” test, previously used in case law regarding cocktail waitresses, Love Air, and Playboy Bunnies.

Against this background on the legal standards, Section II will examine a Minnesota lawsuit brought against the Hooters restaurant chain for sexual harassment. It considers the precedential value of this case to the issue of nude dancers.

Section III discusses a hypothetical situation: the viability of litigation brought by a nude dancer. This inquiry will ask if sexual harassment of nude dancers occurs. It will present the possible plaintiff’s arguments, and focus on the assumption-of-risk defense with reference to a law review article by Kelly Ann Cahill. It also will address the defenses of welcomeness and consent, and Robert J. Aalberts’ and Lorne H. Seidman’s law review article arguing for a sliding-scale approach to these claims. Under these theories, a nude dancer could lose protection because of the nature of the job she took.

Section IV argues that nude dancers should be afforded Title VII protections against hostile work environments by non-employees. This section confronts some of the difficulties posed by advancing complaints by nude dancers under a body of law developed under claims by workers in more traditional office environments. Finally, the utility of other remedies will be addressed.

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