Sex in the Sexy Workplace

Abstract

This article presents yet another problem that cannot be addressed adequately either through an honest application of existing sexual harassment paradigm under Title VII of the Civil Rights Act of 1964 or through any of the solutions to that paradigm’s deficiencies that have been proffered since its inception: hostile environment sexual harassment of the non-sexualized worker in the “sexy” workplace. It offers a comprehensive doctrinal illustration of how both existing sexual harassment doctrine and popular critiques of that doctrine fail to respond to the unique case of the sexual harassment of a non-sexualized worker in the sexual titillation industry (e.g. a secretary at a pornographic magazine publisher). The article offers a doctrinal fix that draws inspiration from the “bona fide occupational qualification” and “business necessity defense” exceptions to Title VII’s prohibition on workplace discrimination. The “bona fide occupational requirement” offers a bifurcated work-related/non-work-related conduct analysis to provide a reasoned, if imperfect, way to narrow some of the gaps in hostile environment paradigm highlighted by the article’s analysis. However, rather than suggest that narrowing the latest gap in sexual harassment doctrine is a necessary or sufficient solution, the article concludes that the sexy workplace illustrates a more foundational problem in sexual harassment law: the sex industry is fundamentally incompatible with the principles of Title VII’s prohibition of gender discrimination.

Keywords: sexual harassement, Title VII, civil rights, gender, discrimination, sex, pornography, hostile environment, quid pro quo