2. Sex Discrimination

Part: 
Four
Chapter: 
2

Along similar lines we urge careful study by the Department of justice of the extent to which producers of sexually-explicit photographs, films, and video tapes are acting in violation of federal civil rights laws, and in particular of Title VII of the Civil Rights Act of 1964.[1103] That law provides, in pertinent part:

It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex.[1104]

This provision has been interpreted widely to protect employees from having to prostitute themselves to supervisors or submit themselves to sexual intercourse or harassment to keep their jobs.[1105] One court declared flatly, "An employer may not require sexual consideration from an employee as a quid pro quo for job benefits."[1106]

On its face this principle would seem to make illegal the requirements that a performer engage in sexual activity as a condition of his or her employment. There are, however, two limitations on its scope that are at least arguable relevant to production of pornography. The courts have ruled that sexual demands (1) must be "unwelcome,"[1107] and (2) must include disparate treatment of the sexes.[1108] The first of these limitations does not seem a serious one: the overwhelming factor motivating the sexual conduct of pornographic models is financial need, certainly not a desire to have sex with the partner assigned to him or her for the scene.[1109] The sexual act is thus in no way "welcome" in the sense we understand the law to exempt.[1110] With regard to the "disparate treatment": requirement, we note simply that women and men are normally paid different rates in the industry for the same sex acts,[1111] and that women in mainstream pornography are expected to engage in homosexual activity while men are forbidden to.[1112]

We therefore believe it likely that much of the commercial production of pornography runs afoul of Title VII, even considering the technical limitations on its reach. Further, we believe that Title VII embodies a principle that should not be strangled by technicalities: no one in this country should have to engage in actual sex to get or keep his or her job.[1113] To the extent that Title VII and comparable state statutes do not currently reflect that principle, we urge serious and rapid consideration of proposals to broaden their reach.

Notes

  1. 42 U.S.C. S2000(e).
  2. 42 U.S.C. S2000 (e)-2(a)(1).
  3. See, Hensen v. City of Dundee, 682 F.2d 897, 908 (11th Cir. 1982); Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981); Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979); Tomkins v. Public: Service Electric & Gas, .568 F.2d 983 (D.C. Cir. 1979); 29 C.F.R. S1064(1)(a).
  4. Hensen, supra note 1194, 682 F.2d p. 908.
  5. Id., p. 904.
  6. Id., pp. 904, 905.
  7. See, Text to notes 984-991, supra.
  8. Thus Hensen defined "conduct" as "unwelcome" if "the employee did not solicitor incite it" and "regarded the conduct as undesirable or offensive." 682 F.2d p. 903. Model Ali Moore is a vivid example of an employee finding such conduct "unwelcome": "I'm not going to say all that stuff about how I love to f..k on camera.... I guess I really don't like the sex much." Ali Moore Interview, supra note 976, p. 9.
  9. Los Angeles Hearing, Vol. I, William Roberts, p. 65.
  10. In "gay" pornography, of course, women are excluded altogether. Id.
  11. We emphasize "actual," for the simulated sexual activity regularly engaged in by legitimate actors in their roles does not provoke the same concerns as actual sex. Simulated sexual conduct does not impinge on personal privacy to so enormous a degree; it risks no transmission of venereal disease; it risks no pregnancy; and, finally, it carries no comparable stigma. For a comparison of sex modeling and legitimate acting, see, text to notes 1043-1059, supra.