학술논문
'Because of Sex': Title VII's Failures Leave Legal Sex Workers Unprotected.
Document Type
Academic Journal
Author
Source
North Carolina Law Review. March, 2022, Vol. 100 Issue 3, p883, 36 p.
Subject
Language
English
ISSN
0029-2524
Abstract
INTRODUCTION 884 I. AN OVERVIEW OF LEGAL SEX WORK 887 II. AN OVERVIEW OF TITLE VII 892 A. TITLE VII SEX DISCRIMINATION 894 1. DISPARATE TREATMENT CLAIMS 894 2. DISPARATE [...]
Society's views towards sex, sexual expression, and gender roles are shifting, as is the public's perception of sex work. Movements calling for the decriminalization of prostitution are gaining attention, and individuals are increasingly taking advantage of online platforms to participate in both the creation and consumption of legal sex work. However, one side effect of the growing opportunities to engage in legal sex work online is the resulting decrease in anonymity. By working on well-known platforms such as PornHub or OnlyFans, sex workers increase their risk of being recognized by clients, coworkers, employers, family, or friends. This decrease in anonymity has led to an influx of stories detailing the discrimination legal sex workers face in their "traditional" jobs. While discrimination against sex workers is nothing new, its increasing visibility raises an important question: Should individuals have to choose between their sexual autonomy and their ability to obtain--and keep--their "traditional" employment without fear of discrimination? Further, what protections exist when an employer takes an adverse employment action against an individual for their decision to participate in legal sex work outside of their "traditional" job? Currently, there is no recognized remedy for sex workers who face employment discrimination from their non-sex-work employment because of their choice to participate in legal sex work. However, that remedy should exist under a law that is already in place: Title VII of the Civil Rights Act of 1964. Historically, Title VII's prohibition of discrimination "because of sex" has been read very narrowly to focus on a strict male-versus-female dichotomy that severely limited its application. Today, however, courts are increasingly willing to expand Title VII to protect the legal rights that are based on, and extensions of, an individual's sex. Given that Title VII's purpose is to provide for equality in the workplace, discrimination based on one's decision to engage in legal sex work appears to be in line with the very type of discrimination Title VII was intended to prevent. This Comment argues that Title VII's definition of sex should either be correctly interpreted or expanded so that Title VII's prohibition of employment discrimination protects employees who choose to engage in legal sex work. The current narrow interpretation of "because of sex" severely limits its application and leaves individuals who choose to engage in legal sex work without adequate protection. Discrimination against an individual for choosing to participate in sex work is discrimination "because of sex," and correctly interpreting, or expanding, that definition would allow Title VII to better provide the protection its text guarantees.
Society's views towards sex, sexual expression, and gender roles are shifting, as is the public's perception of sex work. Movements calling for the decriminalization of prostitution are gaining attention, and individuals are increasingly taking advantage of online platforms to participate in both the creation and consumption of legal sex work. However, one side effect of the growing opportunities to engage in legal sex work online is the resulting decrease in anonymity. By working on well-known platforms such as PornHub or OnlyFans, sex workers increase their risk of being recognized by clients, coworkers, employers, family, or friends. This decrease in anonymity has led to an influx of stories detailing the discrimination legal sex workers face in their "traditional" jobs. While discrimination against sex workers is nothing new, its increasing visibility raises an important question: Should individuals have to choose between their sexual autonomy and their ability to obtain--and keep--their "traditional" employment without fear of discrimination? Further, what protections exist when an employer takes an adverse employment action against an individual for their decision to participate in legal sex work outside of their "traditional" job? Currently, there is no recognized remedy for sex workers who face employment discrimination from their non-sex-work employment because of their choice to participate in legal sex work. However, that remedy should exist under a law that is already in place: Title VII of the Civil Rights Act of 1964. Historically, Title VII's prohibition of discrimination "because of sex" has been read very narrowly to focus on a strict male-versus-female dichotomy that severely limited its application. Today, however, courts are increasingly willing to expand Title VII to protect the legal rights that are based on, and extensions of, an individual's sex. Given that Title VII's purpose is to provide for equality in the workplace, discrimination based on one's decision to engage in legal sex work appears to be in line with the very type of discrimination Title VII was intended to prevent. This Comment argues that Title VII's definition of sex should either be correctly interpreted or expanded so that Title VII's prohibition of employment discrimination protects employees who choose to engage in legal sex work. The current narrow interpretation of "because of sex" severely limits its application and leaves individuals who choose to engage in legal sex work without adequate protection. Discrimination against an individual for choosing to participate in sex work is discrimination "because of sex," and correctly interpreting, or expanding, that definition would allow Title VII to better provide the protection its text guarantees.