This week, the Fourth Circuit Court of Appeals delivered a key decision about the employment rights of strippers, adding another piece to the puzzle of an important class struggle that's going under the radar. The opinion, written by Reagan appointee Judge J. Harvie Wilkinson III, targets the practice of treating strippers as independent contractors rather than employees, and it's heartening for strippers across the country who are fighting to improve their working conditions.
If disputes over labor classification sound familiar, they should. Exploitation of the independent contractor system is rife, most particularly in the tech industry, where it's become a bone of growing contention. Sex workers, however, have been quietly fighting independent contractor status for decades, and they've been steadily winning.
The distinctions between independent contractors and employees are important. For employers, independent contractors offer a number of advantages. There's no requirement to pay payroll tax, Social Security, and other payroll-associated financial liabilities. This makes it much less costly to hire independent contractors, especially when you factor in the lack of need for unemployment insurance payments, workers' comp, health care, and other benefits that employers may be required to provide their staff, depending on state or municipality.
Thanks to the classification of independent contractors, they're not covered by antidiscrimination laws, which allows employers to engage in gross discrimination that would be impossible if they were hiring and managing regular employees. People who aren't regular employees also can't do things like file sexual harassment complaints, which is a big problem in the sex work industry. The environment in strip clubs can be hostile, with numerous dancers reporting systemic harassment from supervisors and employers. Independent contractors are effectively disposable, low-risk employees, and strip clubs take shameless advantage of them.
Dancers can face a host of fees and charges just to hit the stage — yes, strippers actually pay to work. They may pay a door fee, stage fees, DJ fees, and additional fees for individual dances or private rooms. It's possible to spend hundreds of dollars per shift, all without bringing in any compensation from their employers: Dancers are totally dependent on performance fees and tips.
If that sounds completely messed up to you, it does to strippers, too. Over the last several decades, dancers have filed a number of suits challenging their independent contractor status and winning, as for example in 2012, when dancers at the Spearmint Rhino won a $13 million settlement over misclassification and back wages. While winning such suits helps strippers gain more power and leverage in the workplace, it comes with its own hazards — like employers who magically game and shift the rules when they're brought on as regular employees to keep their wages low and profits up.
In this case, the court took a thoughtful look at the distinctions between independent contractors and regular employees, and found that strippers flunked the test for independent contractor status. The judges used the "economic realities" test that's designed to help distinguish between regular employees and contractors, with a specific focus on the level of control exercised by the employer.
The clubs in question, the Fuego Exotic Dance Club and Extasy Exotic Dance Club, claimed that their employees enjoyed a high degree of freedom. Employees disagreed, noting that the club dictated their shifts, required them to adhere to certain appearance and performance standards, and controlled their wages.
Judge Wilkinson wrote that: "The relaxed working relationship represented by defendants — the kind that perhaps every worker dreams about — finds little support in the record." The opinion went on to pick apart the strip club's defense to the other factors, arguing that the strippers were quite clearly employees, and should be treated as such.
This case adds to the body of work on the subject of inappropriate employee classification status for strippers, but it also has larger implications. Sex work is heavily female-dominated, as is the service industry as a whole. Across the service industry, abuses of independent contractor status are rampant, and they tend to hit women, especially women of color, extremely hard.
There are serious economic disadvantages to being an independent contractor, especially in the case of people who are misclassified. Deliberate, industry-wide misclassification creates structural inequalities that can be difficult to combat — there's a reason the Lusty Lady's unionization push in the late 1990s was so important. When the peep show employees successfully organized, it changed the landscape at work, and created groundwork for other exotic dancers to do the same.
Sex work tends to be a taboo subject, or one that attracts nervous giggles, at best. It occupies a very peripheral role in the news and even labor organizers don't necessarily think of strippers or other sex workers when they consider workers' rights.
Yet, the taboo nature of sex work is what makes it so dangerous, and makes sex workers so easy to exploit — one reason many advocates, including Amnesty International, are pushing for changes to the legal framework surrounding sex work.
In some settings, that involves decriminalization to make it safer for people to pursue their jobs in peace. In others, it involves taking on disparities in employment law that force dancers to accept independent contractor status if they want to work, even though they don't meet the test for such classification. The fact that strippers are fighting back in court and few people are taking notice is a striking indicator of how society thinks about sex workers — a labor revolution is happening under our noses, and no one is paying attention.
For strippers, filing such suits is costly, grueling, and time-consuming, with an uncertain payoff. If an employer settles, that may not result in substantive changes at work. If a case proceeds to trial, it may take years to grind through the court system and a series of appeals.
Judges are repeatedly ruling in favor of strippers in cases like these, which is a sign that the court system, at least, has an opinion on how strippers should be classified. However, taking it on a club by club battle is a painstaking process and one that consumes tremendous amounts of time and energy. Clubs are well aware of this, and they're happy to dig their heels in.
Unlike in the tech industry, where a well-placed blow at a giant of industry can have a huge influence, there are few massive players in the stripping world. The Spearmint Rhino is one, making that case particularly notable, but other dancers are suing single clubs or small chains in cases that have limited reach.
It's hard to reach a tipping point when your cases rarely make the news, or when they're a figure of fun if they do. Strippers fighting for their rights might make for funny "oddly enough" headlines, but it's a deadly serious issue for the women (and some men) who just want to be treated fairly at work.