By Jessica Christensen, Employment Law CorrespondentKimberlee Ouwroulis, age 44, and Barbara Sanders, age 45, are both Canadian exotic dancers who have filed complaints with the Ontario Human Rights Tribunal against their former employer, New Locomotion, for age discrimination.
According to Ouwroulis, she began working for the New Locomotion club in Mississauga, Ontario as an exotic dancer when she was 40 years-old. In June, her manager called her into his office and told her “your time is up” and that the club was going in a new direction, with younger dancers. (source) Sanders, who had only worked for the club for seven months, was told by the same manager that she was too “old and ugly” to continue as an exotic dancer. (source) Both women have since found jobs as dancers at other Toronto area clubs.While the actual complaints filed with the Tribunal (Canada’s equivalent of the U.S. EEOC) have not yet been made public, news reports seem to suggest that both Ouwroulis and Sanders performed well as dancers, and were capable of performing their job duties. Reports also suggest that the reasons both women were fired – their ages – are not disputed. Assuming this is so, the only real question to be decided by the Tribunal is whether or not under Canadian anti-discrimination laws, it is permissible for a strip club to use age as a Bona Fide Occupational Qualiication (BFOQ).
Canadian law regarding age discrimination in employment is nearly identical to U.S. law (e.g., the Age Discrimination in Employment Act, or ADEA). In both countries, an employer may only use age as a factor in hiring, firing, promotions, etc. if age is a “BFOQ” – in other words, is reasonably necessary for the normal operation of the business. An easy example is the U.S. Constition’s requirement that a person is not eligible to be elected president or vice-president unless he or she is at least 35 years old. This is an easy example because the age related qualification is an objective one.
The ananysis is much more difficult where the qualification is a subjective one, such as “attractiveness.” For example, in Lindsay v. Prive Corp., 987 F.2d 324 (1993), the employer club terminated the plaintiff, who sought promotion from waitress to topless dancer, stating that she was “too old” and that she did not meet the club’s standard that all dancers must be “beautiful, grogeous and sophisticated.” In overturning the lower court’s grant of summary judgment in favor of the employer, the Fifth Circuit noted that while a court cannot second-guess the employer’s determination of what it means to be “beautiful, gorgeous and sophisticated,” it was for a jury to decide if the club’s assertion of this reason for the plaintiff’s termination was credible, or instead was pretext for age discrimination.
The Lindsay case highlights a particularly thorny issue for employers – especially those in the adult entertainment industry – because commercial concepts of “beauty” or “attractiveness” are intimately related to age. Case law has yet to develop any clear standards delineating where attractiveness standards veer into the territory of discrimination, but it’s not hard to imagine the arguments that can be made on either side. If the Canadian women were financially successful as dancers and can establish that they performed well financially in relation to other dancers, the club will have a difficult time establishing that they did not satisfy the club’s attractiveness standards. On the other hand, if a club markets itself as providing “young” dancers, the women may have difficulty overcoming the club’s internal decision about what “young” means.
One thing is clear – with an aging majority workforce, enterntainment employers can expect to face an increase in age discrimination challenges to practices that have until now been accepted as just how the business works.