Thursday, March 16, 2017

Clark v. Top Shelf Entertainment: When is it sexual harassment to ask a topless dancer to show you her breasts?

Clark v. Top Shelf Entertainment, No. 3:16-cv-00144 (W.D.N.C. Mar. 13, 2017), is a thoughtful decision by District Court Judge Max Coburn Jr. that provides guidance on when an "exotic dancer" can allege sexual harassment for being asked to reveal her breasts. In this case, Asia Clark, who had signed an agreement to perform "clothed and topless," alleged that she was sexually harassed by a supervisor. 

In evaluating Clark's claim, Coburn explained:

[I]n a typical employment situation, an employer asking a female employee to reveal her breasts would be a textbook case of sexual harassment . . . . Where, however, the occupation of plaintiff is that of an exotic dancer that bright line becomes blurred. While the employer can certainly instruct the exotic dancer to remove her top in relation to her duties as an adult entertainer, that ability does not give the employer license to demand that the employee remove her top simply for his own personal gratification.
Clark alleged that a supervisor "constantly harassed her 'to remove her top and show him her breasts, because he thought they were "pretty"' and he did so 'nearly every time she worked'"; that the supervisor demanded that she show him her breasts outside the view of customers; and that some dancers were allowed to perform clothed.

Coburn rejected the employer's contention that it was merely enforcing the employment agreement. Although the agreement stated that Clark would perform topless, it did not enable the employer to "dictate that she go topless at the will of her supervisors." Read in the most favorable light, Clark's contention was that she was asked "to re
move her top for personal, prurient interests," and therefore, she could proceed with her sexual harassment claim.

As Coburn indicated, a topless dancer could not base a sexual harassment claim on sexual conduct that was necessary for her to perform her job duties. 
I recently watched the movie "The Graduate," and there's a scene in a strip club in which a dancer is wearing pasties with tassels, and she twirls the tassels in opposite directions. In a typical workplace, a woman might be able to allege sexual harassment if men stared at her breasts. But if your job calls for you to use your breasts to entertain customers, then you can't object to customers who stare at them during a mesmerizing exotic dance routine. I couldn't find a clip of this scene, but here's a how-to video if you want to learn to nipple tassel twirl, and apparently it's a skill that even men can learn. (The video has shirtless men, but the female instructor remains clothed.)

So the point is that a topless dancer is protected against sexual harassment, but generally cannot base a claim on sexual conduct that she should reasonably expect to be a normal part of doing the job. 

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.