Thursday, February 26, 2015

Is Non-Pregnancy a BFOQ for Exotic Dancers?

Well, here's a sentence I never thought I'd read in a court opinion: "[T]here is a genuine issue of fact as to whether a dancer's pregnancy-status is sufficiently related to her sex appeal." Berry v. Great Am. Dream Inc., No. 1:13-CV-3297-TWT, 2015 WL 751650, at *2 (N.D. Ga. Feb. 23, 2015).

An "adult entertainment" facility fired a pregnant exotic dancer, who filed a discrimination claim under Title VII and the Pregnancy Discrimination Act amendments. The defendant argued that "sex appeal" was a bona fide occupation qualification (BFOQ), a defense to such claims, in a summary judgment motion.

Technically, a particular sex would be the BFOQ, not sex appeal. But, as the Court recognized: "although 'sex appeal' may not be a BFOQ, it may be a particular job requirement whose connection to a dancer's pregnancy-status renders the latter to be a BFOQ.

The employer ran into some problems with factual disputes (the enemy of any summary judgment motion). Apparently, some dancers were allowed to keep dancing (albeit on the floor instead of the stage) even after they became pregnant. There was testimony that one dancer continued until she was 8 months pregnant. Management testified that some customers preferred "thicker" bodies (I'm not sure "thicker" and "pregnant" are really synonymous . . . but the Court at least mentions the "thicker" comments).

Summary judgment DENIED! However, "sex appeal" may still serve as the employer's legitimate non-discriminatory reason for terminating the dancer, and I'm guessing they'll raise that argument soon.