Discrimination Against Pornstars, Escorts, Kinksters and Swingers

One area of law that often receives much publicity in the mainstream media is employment law. There are always news reports of litigation about sex discrimination in the work place. Media loves reporting on multi-million dollar judgments in sexual harassment cases, especially those involving celebrities. They also love a story involving a pornstar getting fired from a job because of his/her porn-past.

Recently, I appeared on Taboo Fetish Radio, hosted by Sydney Screams and Whitney Morgan, to talk about what protections current and former pornstars, escorts, sex workers and even those with an alternative lifestyle such as Kinksters or Swingers have in regards to being singled out and fired from their jobs ( Please see:  http://www.blogtalkradio.com/porn-star-radio/2012/09/20/taboo-fetish-talk ).

In a recent case that is still being litigated, Ms. Stacie Halas, a middle school teacher, was fired from her teaching position with the Oxnard School District in California on April 18, 2012 for her involvement in pornography movies. ( Please see: http://www.vcstar.com/news/2012/jul/23/judge-to-hear-dismissal-case-of-oxnard-teacher/ )

“The school board voted unanimously April 18 to fire Halas, saying her continued employment would disturb the classroom environment. Halas appealed the decision to the Office of Administrative Hearing, a quasi-judicial tribunal that handles such disputes. In a notice of defense, Halas’ other attorney, Rich Schwab, says Halas did nothing illegal and is fit to teach.

In accusation documents filed with the Office of Administrative Hearing, the school district says Halas lied about her connection to pornography and about the reason she resigned from a neighboring district. In the days after the discovery of the pornographic movies, district officials said students talked about and watched the movies on campus, and a classroom where Halas once taught was vandalized.”

It appears from this quote that the underlying reasons for Ms. Halas’s termination was not actually her involvement in pornographic movies but rather the falsification of her employment application. This is a common way for employers, especially in California, to fire an employee at anytime for basically any reason. Many state and federal courts have held that if an employee lies on his/her employment application then they have basically defrauded the employer into hiring them and thus has no legal recourse even if they were fired illegally. The doctrine of unclean hands comes into play and that falsification can act as almost a complete bar to later claims by employee for being fired for a non-lawful discriminatory cause such as race, gender, sexual orientation, skin color or place of national origin.

Basically, if you lie on your employment application you will have a mountain to climb to even be able to sue your employer for any reason, even if your boss tried to force you to provide him/her sex on the job in exchange for not firing you ( You would still have a lawsuit against your boss individually though ).

Courts have generally adopted the following line of reasoning as noted in Summers v. State Farm Automobile Ins.,  ; ( Please see: http://bulk.resource.org/courts.gov/c/F2/864/864.F2d.700.87-1087.html )

Many of the courts have accepted an analogy posited in Summers : “The present case is akin to the hypothetical wherein a company doctor is fired because of his age, race, religion, and sex and the company, in defending a civil rights action, thereafter discovers that the discharged employee was not a ‘doctor.’ In our view, the masquerading doctor would be entitled to no relief, and Summers is in no better position.”

Courts are rarely sympathetic to employees that are less then truthful when applying for employment. A prospective employee that has a past in pornography, prostitution or even an alternative lifestyle may not be desirable hiring choice for many employers, especially those that have mainstream visibility or conservative clients. Even visible tattoos has been an issue in regards to being employment.

Obviously, prior employment or self employment is a much larger issue when it comes to future employment applications. Those that are or have been sex workers, whether in adult films, as an escort, stripper, dominatrix, sub, unlicensed massage parlor worker or any of a number of related fields have the highest risk when falsifying an employment application. Anyone would be hard pressed to find a court decision finding that an employer, who terminated a such an employee, would be liable for a discriminatory termination. ( If any of my readers know of any such appellate court decision from any state in the United States I would very much appreciate that information.) Therefore, I am watching Ms. Halas’s lawsuit with great interest. Her claims may set a positive legal precedent as to protecting individual sexual liberties but I have my doubts.

As for lifestyle choices such as BDSM or swinging, since these do not apply to previous employment there is much less of a risk of not revealing these choices to a prospective employer on an employment application. However, if your involvement in those lifestyle choices did involve earning income from them such has producing content and selling it on a Clips4Sale.com store that might be seen as self employment by your employer.

There might be one exception to this situation. While I have found no cases on point involving sex workers or alternative lifestyle choices, there would be an argument for a terminated employee to make if the employer had discovered the falsification on the application and did not do anything about it immediately. Meaning that if you lied on your employment application and four days into your employment your employer or supervisor discovers your lie and takes no action but five years later tries to fire you for the falsification as a pretense for some other reason you might have a defensible position however I cannot state for certainty whether that would provide the basis for a victory against your employer.

The lesson in this is that if you lie on your employment application it can come back to haunt you, even many years later. Obviously being completely honest about your past or present may cost getting you a job. What you decide to reveal on an employment application is a personal decision. Just be aware of the law.