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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

Federal Court Rules That Exotic Dancer Is Protected Against Unwelcome Sexual Harassment At Her Workplace

In order to establish a claim of hostile work environment sexual harassment, a victim must demonstrate that the harassment was unwelcome.  As explained by the U.S. Supreme Court in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986), that the conduct in question is unwelcome is “the gravamen of any sexual harassment claim.”  In many cases, as observed by the Meritor Court, “the question of whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact.” 

Having litigated sexual harassment cases for almost twenty years, our Central Florida sexual harassment attorneys have learned that employers frequently contend that the victim did not suffer unwelcome harassment.  In doing so, employers often attempt to portray the sexual behavior as a “joke,” “horseplay,” or “banter.”  Grasping at straws to avoid being held liable for their toleration of sexual harassment in the workplace, employers sometimes will even shamelessly argue that a victim’s private and consensual sexual activities somehow demonstrate that he or she welcomed the sexual harassment. 

In manufacturing such arguments, employers seek to obfuscate applicable law because, as observed by the U.S. Eighth Circuit Court of Appeals in Bales v. Wall-Mart Stores, Inc., 143 F.3d 1103 (8th Cir. 1996), the conduct must be unwelcome “in the sense that the employee regarded the conduct as undesirable or offensive.”  Thus, as the recent decision by the U.S. District Court for the Western District of North Carolina in Clark v. Top Shelf Entertainment, LLC, 2017 WL 971051 (W.D. N.C. March 13, 2017) illustrates, the correct inquiry in determining whether the harasser’s behavior was unwelcome is whether the victim indicated by his or her conduct that the behavior was undesirable or offensive. 

Dancer Asked To Remove Her Top For Supervisor’s Gratification

In that case, Asia Clark (Clark) brought a sexual harassment claim pursuant to Title VII of the Civil Rights Act of 1964 arising out of her work as an exotic dancer at Club Onyx (Onyx).  Clark claimed that she was sexually harassed a supervisor named Kilgo.  Clark alleged that Kilgo would demand that she reveal her breasts during performances at Club Onyx nearly ever time she worked.  Clark further asserted that Kilgo insisted that she reveal her breasts in areas where no customers were present, such as the dressing room, or when there were no customers at the club.  Thus, Clark contended that Kilgo asked her to “remove her top not just for customers, but for his gratification.”  Although Clark signed an agreement wherein she allegedly agreed to perform clothed and topless, Clark maintained that she “never once performed topless.”  Clark further asserted that some performers were allowed to perform clothed and the requirement that performers work “clothed and topless” was not consistently enforced.

Club Onyx moved to dismiss Clark’s sexual harassment claim on grounds that alleged harassment was not unwelcome because Kilgo was “merely enforcing” the agreement wherein Clark agreed to “perform clothed and topless.”  In other words, Club Onyx maintained that Kilgo’s demands that Clark reveal her breasts could not have been offensive to her because revealing her breasts was something Clark agreed to as a condition of her employment.  The trial court denied Club Onyx’s motion for dismissal.

Exotic Dancers Do Not Have To Accept Sexual Misconduct At Work

In refusing to dismiss Clark’s sexual harassment claim, the trial court pointed out that “workers, including exotic dancers, have protections at the workplace, including protections from sexual harassment (especially by their employers), sexual assault, and other sexual misconduct.”  The trial court explained that even if Clark “was asked to perform topless as a condition of her contract, this does not mean that she had to accept sexual misconduct at her workplace.”  Indeed, even if Clark agreed to perform topless and clothed as a condition of her employment, “that agreement would not enable the company to dictate that she go topless at the will her supervisors, particularly when she was not performing and during times when there were no customers.”  Because Clark alleged that Kilgo demanded she reveal her breasts for his personal “gratification” and she indicated by her conduct that the demands were offensive by refusing to remove her top, Kilgo’s purported behavior was a form of sexual harassment prohibited by Title VII and “unrelated to legitimate business need.”

Free Consultation With Ocala Sexual Harassment Lawyers   

Based in Ocala, Florida and representing employees throughout Central Florida, we have almost twenty years of experience representing employees who have endured sexual misconduct in the workplace.  If you have been the victim of sexual harassment or have questions about the protections from sexual harassment, please contact our office for a free consultation with our Central Florida hostile work environment sexual harassment attorneys.  Our employee rights law firm takes sexual harassment cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover. 

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