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Prior Sex Work Haunts Employees Returning to Traditional Jobs

May 25, 2022, 9:30 AM

Pandemic shutdowns spurred workers in hard-hit industries to find alternative forms of income, yet many who turned to sex work to help make ends meet say they’re facing hostile work environments when returning to traditional jobs.

Hospitality workers who lost their jobs during the first wave of lockdowns were the first pool of workers to face this issue, according to Vincent White, an attorney at White, Hilferty & Albanese.

“And when things started opening up again, some employers said, ‘You can’t work here, you’re a prostitute now,’” said White, whose firm has represented workers in several cases alleging unlawful discrimination related to prior sex work.

In one of those cases, a former T-Mobile employee alleged that she reported a physically aggressive encounter with a male colleague, only to have human resources question her about her account on OnlyFans, a paid online platform often used to sell explicit content.

The suit was filed last summer and ended outside of court. White declined to comment on the specifics of that case.

In another case filed in July 2020, Randall Kotnik, a corrections officer in Long Island, sued the county for harassment he allegedly faced from a supervisor. Kotnik’s complaint accused his supervisor of showing years-old clips of homosexual porn that Kotnik starred in to inmates he oversaw. That case settled. Kotnik’s attorneys did not respond to a request for comment.

These cases highlight a common trend: the more the sex work in question strays from societal norms about the way women and LGBTQ workers are expected to behave, the more likely it is to be used against an employee.

Sex Stereotyping

“It comes down to sex discrimination a lot of time,” said Derek J. Demeri, an attorney with Zeff Law Firm LLC. “It leans on stereotypes about how women are supposed to act, how LGBTQ people are supposed to act.”

Attorneys who file lawsuits relating to workplace discrimination or harassment based on previous sex work say the allegations fall neatly into sex discrimination protections under Title VII of the 1964 Civil Rights Act.

Women and members of the LGBTQ community are more likely to be sex workers in the first place, and they tend to face different attitudes toward that work when their employers find out, according to Broderick Dunn, a partner at Cook Craig & Francuzenko PLLC.

“A lot of the language that people use to denigrate sex workers is gendered and sexist in nature,” said Dunn, who has represented clients in these types of cases.

Dunn said progress starts with proper training for HR professionals that acknowledges “sex work is work.”

The way these cases play out have varied by region, White said.

On the coasts, employers tend to provide alternate reasons for firing employees after learning about their engagement in sex work, he said. A Southern or Midwestern state is more likely to see cases where the employer was straightforward about dismissing an employee for prior sex work.

“We cannot substitute our morality for what people need to do to get by,” White said.

Lack of Guidance

Like most employment discrimination cases, litigation related to sex work is usually settled out of court. The result is sparse case law to build off of while waiting for lawmakers to address the issue.

The US Equal Employment Opportunity Commission, which enforces federal workplace antidiscrimination laws, also doesn’t have clear guidance on how employers should address cases like these.

“Oftentimes the law lags behind the reality of what’s actually going on in the workplace,” Dunn said.

But there are avenues for fitting discrimination based on sex work into traditional legal claims.

Workers can make disparate treatment arguments, if, for example, somebody was disciplined for engaging in legal sex work, but other employees with criminal offenses were not disciplined, Dunn said.

Discipline or harassment based on legal and consensual sex work also could lead to breach of privacy claims, according to Shirley Lin, a law professor at Pace University who teaches courses on employment discrimination. Generally, a supervisor who takes action for activities done outside of work should have a legitimate reason to do so other than personal judgment or biases about the type of work the employee does or did away from the worksite, she said.

“If you were to look at a bright line rule it would really be whether or not it is the employer’s business, in both sense of the word, to interfere in an employee’s personal life,” Lin said.

In one of the few sex work cases a court has addressed, a federal judge in Oregon in December found that a former adult performer could go forward with her claim that her nursing school illegally discriminated against her based on gendered stereotypes. The case is set to go to trial in June.

The plaintiff, Nicole Gililland, alleged that she was unfairly disciplined and told by faculty at her nursing school that it takes “classy women” to be nurses, implying that her previous work in the adult film industry made her “unclassy.”

According to the ruling, a jury could find that Southwestern Oregon Community College violated federal protections against sex discrimination in education under Title IX of the Education Amendments of 1972 by advancing “a stereotype about the kind of woman appropriate for the nursing profession.”

Demeri, who’s advocated for fair treatment for sex work since 2013, said that case “made shockwaves in the community” and will likely lead to more plaintiffs coming forward.

“That is definitely going to inspire a lot of people to think that if they do come forward they will be taken seriously,” Demeri said.

To contact the reporter on this story: J. Edward Moreno in Washington at jmorenodelangel@bloombergindustry.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com