In a 1999 article, Margot Rutman described how dancers' protections against age, race and national origin discrimination are undercut by club owners' ability to characterize an employment action as based on beauty or style. See Exotic Dancers' Employment Law Regulations, 8 Temp. Pol. & Civ.Rts. L.Rev. 515 (1999). Unless a club really puts its foot in its mouth, or systematically discriminates for some time, that defense will be very difficult to try on the facts.
But at least it's clear that such claims can be made. What about sex discrimination?
As far as I know, there is no case law squarely addressing whether exotic dancing clubs can discriminate on the basis of sex, but dicta in some court decisions treat the issue as a paradigmatic no-brainer. Consider the oft-cited decision in Wilson v. Southwest Airlines, 517 F.Supp. 292 (N.D. Tex. 1981), which torpedoed the flirty-attendants-in-hot-pants, Airline-That-Loves-You business model on which Southwest was built. There, the court held that sex appeal, and specifically female sex appeal, was not an essential part of the job of a flight attendant, despite being preferred by customers and being a key part of Southwest's particular business plan. By way of contrast, the court mused that:
in jobs where sex or vicarious sexual recreation is the primary service provided, e. g. a social escort or topless dancer, the job automatically calls for one sex exclusively; the employee's sex and the service provided are inseparable.In support of this conclusion, it cited two unpublished 1971 cases of the New York Human Rights Appeals Board, which concerned age discrimination but stated in dicta, without explanation, that sex was a BFOQ for being a Playboy Bunny at the Playboy Club. This was evident because, according to the Wilson court, "female sexuality [is] reasonably necessary to perform the dominant purpose of the job which is forthrightly to titillate and entice male customers."
The distinction drawn between flight attendants and exotic dancers or Playboy Bunnies has always troubled me. A quick read of the Wilson facts makes clear that in a very significant sense Southwest Airlines was also selling "female sexuality" to its largely male clientele. But the Wilson court held that the essense of the flight attendant job lies in the attendant's "mechanical, non-sex-linked duties." Female sex appeal was simply "the manner of job performance, not the job performed."
Now, it would be mere sophistry to argue that an exotic dancer's duties are merely "mechanical," for indeed the essence of his or her job is not just dancing but sexual entertainment. Sexiness (of a sort) is certainly "the job" and not "the manner."
But is femaleness also an essential feature of the job? Consider that male and female exotic dancers, while typically working in separate clubs, perform essentially the same job. Clearly both men and women can (a) dance, (b) strip, and (c) be sexy. The only thing men cannot do is be sexy in the eyes of a straight male customer.
(This, of course, is a convenient overstatement. The success, indeed the mere existence, of the film 300 itself proves that ostensibly heterosexual males often derive enjoyment from blatant displays of the male body.)
The Wilson dictum, then, is founded on two basic assumptions: first, that exotic dance clubs by their nature must cater to heterosexual males (or alternatively, that the world contains two kinds of clubs -- gay and straight ones -- and the two are fundamentally distinct and irreconcilable); and second, that heterosexuality (or, in a few clubs, homosexuality) is far more than a mere customer preference and indeed defines sexual entertainment.
In other words, exotic dancing at its essence is pleasing straight men. Or, to the extent that there may be more than one audience out there that wants more than one thing, each audience wants only one thing, and each club can attract only one audience.
This is, of course, an accurate reflection of the industry as it exists today. With very few exceptions, clubs do not offer a mix of male and female dancers in the same venue. (The few that do specifically market themselves to straight women and men respectively; it is not just heterosexuality at work here, but homophobia, as straight male patrons are assumed to be repelled by the presence of gay male patrons.) Imagine the reaction in your average Crazy Horse Saloon or Diamond Men's Club if, between Amy the Blonde Princess and Cherise the Dark-Eyed Beauty a handsome man in a g-string appeared on stage.
But isn't that a quintessential example of customer preference at work? And what about the increasing number of female patrons at these clubs? And what about those few exceptional clubs that offer male and female dancers on separate stages? And might there not be some bisexual or bi-curious patrons, or potential patrons, of both sexes who would prefer a combination of male and female dancers? Sure, the tried-and-true all-girl approach might make more money, but that in itself does not a BFOQ make under Wilson.
To be sure, it's hard to imagine the male dancer who would want to work in an all-female club, or vice versa. A serious challenge to sex discrimination in exotic dancing would presumably lead to a downturn in business for clubs in the immediate short term, and a radical transformation of adult entertainment in the longer term. But would that be so bad? Might that not produce some benefits in terms of sex equality?
In reality, this issue may never be litigated, and if it is, courts are likely to hold fast to the assumptions implicit in Wilson. If nothing else, though, thinking about BFOQ in the context of exotic dancing can serve to illuminate both the rigid way we're in which we're used to thinking about sexuality, sexiness and gender; as well as the potentially hazy line-drawing inherent in the BFOQ doctrine.