March 23, 2006

I'm N Law (Wit a Stripper)

by PG

Having this article in USA Today only a few days afer the NYTimes piece on the scarcity of female partners may be too much for coincidence and point to an actual media trend.

Wearing a scanty blue gown with rhinestone clasps, Nicolette Hart explains how she can make up to $2,500 a night with investment bankers and their clients in a Manhattan strip club's private rooms.
She writhes and rubs her nearly naked body against as many as seven men, doing "lap dances" for $400 an hour. (The room costs an additional $200 for the hour.) Hart, who once worked for a venture-capital firm, always asks what brought the men together. They often say they're having a meeting.
"I say, 'You're having a business meeting in a strip club?' " Hart says in an interview in the dressing room at Rick's Cabaret here. [...]
Attorney Rohit Sabharwal, a Rick's regular, says he often takes clients of his small law firm with him and such entertaining was common when he was at a large firm, too. "Nobody really objects," Sabharwal says. "I think it's a lot more civilized in the law profession. I don't think women have a problem succeeding in law firms."
If that's what they're teaching at Penn Law, I suppose I should be grateful not to have made it off their waiting list. Still, whether business activity at a strip club is inherently discriminatory against women in the company does not have as obvious an answer as the article implies.

Deliberately excluding female co-workers from such jaunts would be overt discrimination, and inasmuch as that was what was happening at Merrill Lynch, Morgan Stanley, UBS et al., their multi-million dollar payouts are unsurprising. For example, Morgan Stanley plaintiff Allison Schieffelin says that she was told that she wasn't invited to a client entertainment in Las Vegas "because the men would be uncomfortable participating in sexually oriented entertainment with a woman colleague present, especially one who knew their wives." This is obviously unacceptable; managers cannot choose to keep some employees from having the same opportunities for client contact as others do.

However, a more subtle form of discrimination would be to invite the women along and hope that most will be too uncomfortable with the idea to accept. Of course, the success of this strategy depends on the target; a woman who said yes and spent the night cheerfully engaging the strippers could end up either becoming "one of the boys," or making the client feel uncomfortable with having a female around in a non-subservient position. As long as women also are invited, the firms have covered their asses, so to speak.

"There are two levels of discrimination: the frat house environment in the office and the deeply embedded practices that are just starting to be uncovered, like the distribution of accounts, business leads and promotions," says Hydie Sumner, a financial consultant who was awarded $2.2 million in 2004 after suing Merrill Lynch for gender discrimination. "When 'business activities' involve the strip club, golf course or hunting ranches ... discrimination is often perpetuated as those in power support and advance those with like minds and tastes."
That those in authority often prefer to have like-minded people around is a truism, notwithstanding the trumpeting of diversity. Nor is it peculiar to white males. Companies run by people of color sometimes hire a disproportionate number of people of the same race because this is the management's social network. My friends who work in female-dominated industries such as certain areas of publishing find favoritism playing out among women based on similar lifestyles (single versus married with children) or backgrounds (socioeconomic level of family, place of eduation). But this human instinct is no better merely because it is universal.

The point at which such tribalism becomes discriminatory, however, is difficult to determine. A longstanding point of discussion in feminist literature is whether women should adapt themselves to the existing power structure -- becoming golfers, hunters and strip club enthusiasts, which makes only exclusion discriminatory -- or should attempt to change how the workplace operates, such that those venues no longer are considered appropriate for business interaction. An alteration of the latter sort likely would have benefits for others who must decide between accepting an invitation that could further their careers, and maintaining their own principles. For example, a religious male employee may be expected to join the gang at the strip club, but choose not to do so on the ground that participating in the outing would violate his beliefs.

Certainly strip clubs seem to me a non-essential arena for establishing client relationships. The company at which I worked before law school preferred dinners and sporting events, activities that were unlikely to jar the sensibilities of either workers or clients. As Catharine McKinnon once said when asked if sex harassment law was stifling freedom of expression on the job, "Somebody ought to get worried about the fact that no work is getting done." A company that censors employee speech might be too draconian, but one that refuses to pay for a lapdance surely isn't.

ESSENTIALLY UNRELATED UPDATE: A Minnesota court finds no legal definition for "lap dance."

March 23, 2006 02:11 PM | TrackBack

There is, of course, the obvious solution, which is to prove that while women are excluded from trips to Scores, female executives and employees have equal access to expense-account subsidized, client (or client's wife) trips to Chippendales.

My tongue is firmly in my cheek there, actually. It would be nice if executives who spent this kind of money on sex services could be made liable for breach of fiduciary duty. It pains me to agree with CM, but it looks like here I have to. :(

Posted by: A. Rickey at March 23, 2006 05:51 PM

Surely inviting female employees to participate in strip club jaunts, with the implicit understanding that this form of client contact is considered desirable, would not cover the company's ass but rather would open it up to a hostile-environment charge, wouldn't it?

Posted by: Tom T. at March 23, 2006 08:08 PM

why does this form of client entertainment EVER get considered to be acceptable, regardless of whether or not it is discriminatory?

Posted by: marshmallow at March 23, 2006 10:56 PM

Tom T.,

Hostile environment claims are more difficult to prove than allegations of deliberately discriminating on the basis of sex, and of course not nearly as easy to win as quid pro quo, because it's much more difficult to say that there is discrimination. Successful plaintiffs generally have to show that the sexualization of the environment was used to make them uncomfortable, as with a man's pointing to a pinup calendar and comparing the image to a female co-worker. Or the example given in Black's Law Dictionary: "hostile-environment sexual harassment. Sexual harassment in which a work environment is created where an employee is subject to unwelcome verbal or physical sexual behavior that is either severe or pervasive. This type of harassment might occur, for example, if a group of coworkers repeatedly e-mailed pornographic pictures to a colleague who found them offensive."

To get an idea of how extreme behavior must be, check out Ocheltree v. Scollon Products, 335 F.3d 325. Picking a random quote: "The production shop talk that portrayed women as sexually subordinate to men was also calculated to disturb Ocheltree, a jury could reasonably find. We refer here to the almost daily accounts from some of the men who described their exploits with their wives and girlfriends in demeaning terms such as 'she gave good head,' 'she likes to swallow,' she 'let[ ] [the semen] run down the side of her face,' and 'she like[s] it from behind.'" And yet a female (!) 4th Circuit judge found these facts to evince "immorality, vulgarity, or disrespect," but not "gender-motivated discrimination."

Posted by: PG at March 24, 2006 02:58 AM

Interesting case, and you're right about Judge Williams' dissent. The majority affirmed the verdict for the plaintiff, however, and on terms that I think would be applicable to our strip-club discussion. As the concurrence points out, the majority essentially finds that hostile-environment discrimination can be based on "general work conditions that both males and [the female plaintiff] experienced," even where the number of instances specifically targeted at the plaintiff were relatively few.

By the way, I was impressed by the delicately lawyerly reference to "c[o]m[e]" in the court's recounting of the facts. Some poor clerk was obviously tasked with "find the least-vulgar way to quote that word."

Posted by: Tom T. at March 24, 2006 08:20 AM

Tom T.,

Right, but the decision I linked was on en banc appeal -- Ocheltree lost before the three judge panel. I meant to illustrate that some fairly extreme facts are not certain to prove discrimination, and I doubt that Ocheltree would have won her case had her male coworkers not deliberately targeted her. Note that this was not a pre-existing sexualized work environment, but one that changed after Ocheltree joined the company:

In the early stages of her employment, the atmosphere in the shop was "fun" and "friendly," but this changed. During her first year there, coarse sexual talk and sexual antics by several of the men began to occur with increasing frequency. This misconduct worsened as time went on, especially after Ocheltree complained to the men and the shop supervisor.
In contrast, the strip club visits apparently are of long standing and possibly predating the entrance of women to the firms.

Posted by: PG at March 24, 2006 02:42 PM

I must have missed that class. The only time strip clubs ever came up in my class work was in my First Amendment class.

Posted by: Penn2005 at March 27, 2006 02:36 PM
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