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Stripped of Rights

Red had had enough. Casa Diablo, the vegan Portland strip club where she danced, had crossed one too many lines. The daily, unchecked groping and pinching of dancers by clients and bouncers had become unbearable. The shady fees the club charged for behaviors ranging from not arriving early to wearing animal products on stage — not to mention the mandatory tip-sharing with DJs and bouncers — had added up.

Though Red was treated like an employee, with scheduled shifts and strict rules dictating her behavior, she was technically considered an independent contractor. This arrangement is standard practice at strip clubs, especially among Portland’s smaller establishments. Classifying dancers as independent contractors allows employers to dodge paying taxes on dancers’ incomes and denies strippers basic employee rights, such as minimum wage, paid time off, and worker’s compensation. Red was well-aware that such activity was illegal; she had been involved with Danzine, a sex worker activist project, and had attempted to form a union years before. She finally sued Casa Diablo last January for lost pay and damages from harassment, claiming that she and other dancers had been misclassified as independent contractors.

Red’s case joins a number of lawsuits across the country filed by dancers against their former employers. In late 2012, dancers for the Spearmint Rhino chain won $13 million in a settlement seeking back pay from illegal penalties and stage fees. The settlement also required the chain to treat dancers as employees and stop charging several fees. When it came to Sapphire Gentlemen’s Lounge in Las Vegas last October, the decision was unequivocal: Strippers are employees and entitled to protections under the law. On paper, however, the estimated 350,000 strippers across the country continue to be treated as independent contractors and denied the rights they should be guaranteed as employees.

The line between independent contractor and employee can be blurry, as there are only a few distinguishing factors. Stripping allows for more flexibility than typical nine-to-five jobs and for variable earnings based directly on performance, factors often used to define dancers as independent contractors. However, the US Department of Labor’s employee definition proves that strippers are employees: Their services are integral to the business, and managers exercise huge amounts of control over their behavior. Independent contractors’ work should be incidental to the business, and strip clubs wouldn’t exist without strippers. Independent contractors are able to choose how they do their jobs — at Casa Diablo, strippers have to drop their lingerie in the first thirty seconds on stage.

By deliberately confusing this status, clubs avoid paying minimum wage and can take huge portions of strippers’ tips without paying a dime to the taxman. And although the paperwork is much simpler for independent contractors than it is for employees, according to Red, even the minimal legal protection that these contracts would provide is nonexistent at many clubs, as most contracts are verbal. For small businesses like Casa Diablo, evading local or federal taxes on any of the tips dancers bring in is a win-win situation. Not having to worry about sick days or employee harassment suits is the icing on the cake.

Although it’s clearly in clubs’ interests to keep strippers as independent contractors, it’s not always evident that strippers should fight to be considered employees. Some dancers like the theoretical freedom attached to their misclassified status as independent contractors, and many don’t realize that they’re being treated illegally.Others believe that becoming employees will tie them to the minimum wage or create a paper trail, making them easier to find by their real names or forcing them to pay more taxes.

Those fears are misplaced, as most states have laws that make digging up evidence of employment — like tax returns — nearly impossible. Besides, as independent contractors, strippers already file their own independent contractor tax forms, and as employees, they would retain the same level of anonymity. In addition, employee status would require clubs to pay the 7.5-percent employment tax that strippers currently pay entirely on their own. While clubs may pay minimum wage, strippers would still largely earn their income through tips, and employee status could protect them from illegal, forced tip-sharing. The status would also give strippers a legal right to organize and form unions to negotiate with management.

Those points aside, it’s hard to imagine giving up a lucrative income stream for a likely drawn-out court battle. Suing management often leads to lost shifts or unemployment, illegal as that may be. Even threatening legal action can have consequences. Brandi Campbell, who sued Las Vegas’ Hustler Club outpost, was fired in retaliation for offering her coworkers her lawyer’s business card. After an investigation by the National Labor Relations Board (NLRB) found her to be a mistreated and misclassified employee, Campbell turned down the offer to be reinstated in favor of a settlement, as she didn’t feel safe returning to the club.

Suing can have consequences outside the workplace as well. Strippers who speak out often find themselves blacklisted from nearby clubs — and moving on to other professions isn’t easy. Though perfectly legal, stripping remains heavily stigmatized, and having their names permanently attached to their former employers can preclude both current and future opportunities for these dancers.

However, those who have chosen to out themselves in lawsuits have largely won in court, with both hefty damages awarded in high-profile settlements and persistent affirmation of these dancers’ employee statuses. With each big win comes the possibility of precedent for the industry across the country. There are also hopes beyond the courtroom for asserting employee rights. This July, Oregon passed HB 3059, which authorizes the Bureau of Labor Industries (BOLI) to put posters about employee rights in strip club dressing rooms and staff a hotline for questions and complaints by current or former strippers.

Red, who was involved in the bill, helped BOLI design its poster in approachable language for dancers with little legal experience. Supporters of the bill hope that the posters and hotline, which allows callers to remain anonymous, will help tip off BOLI about abuses and lead to further investigations. Campbell was also hopeful about the posters the NLRB put up at her old club, advising strippers of their rights to organize as employees. However, a friend of Red’s lost shifts at her club for simply talking about the incoming posters, part of the recurring pattern of clubs firing strippers to prevent union organization.

Despite these gains, both societal and structural problems continue to stand in the way of strippers gaining permanent employee status. There is no organization that specifically and regularly investigates clubs’ labor violations. Though BOLI and the NLRB may take these dancers’ sides, other governmental organizations can be much less responsive and take months or years to take action. Nor is there significant public outcry about the way strippers are treated: These are typically young, uneducated women working a job seen as both lucrative and inherently abusive. When Campbell first filed with the Nevada Equal Rights Commission (NERC) for harassment, she was told that the Commission had historically not taken cases from “strippers and prostitutes” because of a perceived normalized environment for harassment. Though clubs may be considered breeding grounds for the violations these dancers have brought forward in their suits, many of these issues are endemic to low-wage workers. The perception of a legal gray area in this line of work simply allows clubs to get away with more than in other businesses.

Some media outlets have suggested that these courtroom wins portend consequences for businesses like Uber, which have dodged employee labels on flexible, independent contractor-like workers and claimed that their new technological businesses can’t possibly conform to decades-old regulation. Though these ideas may have one solid point in common — strippers and Uber drivers are the basis for their employers’ businesses — their situations are entirely different. Uber’s business model places much less of an emphasis on hierarchy and direct super-vision than the classic strip club paradigm does. Consequently, the plaintiffs in the tech companies’ cases have a weaker case than these strippers do for regulating the relationship between supervisors and workers and earning benefits from full employment status. Giving lip service to other industries when talking about strippers’ employee rights shifts the focus away from an already marginalized issue.

It’s still too soon to tell if these suits will change their own industry. Even at chains where strippers have won, the employee rights gained are Pyrrhic victories; many of these dancers’ new contracts include signing away the right to sue, a completely illegal measure. Despite the estimated $2.5 billion that American strip clubs generated in 2014, most clubs are small and independently run, so the waves from changes at big chains only make small ripples. And clubs nervous about legal action haven’t responded by treating their strippers as employees or stopping harassment. Instead, many have decided to loosen controls — more flexible scheduling, fewer rules on conduct — to strengthen the illusion of an independent contractor relationship. By lowering restrictions on their strippers, these clubs hope to skirt cases or give them less evidence to work with.

In the meantime, Red still awaits her day in court, while Casa Diablo has added a second location. Campbell, despite already being classified as an employee by the NLRB, has months to go in her civil suit and in her case with the NERC. Furthermore, recently passed legislation in Nevada, Senate Bill 224, may have reversed the Sapphire decision. While they wait in legal limbo, strippers continue to withstand injustices that they should be protected from by virtue of being the employees they already are.

About the Author

Liz Studlick '16 is a staff writer for the Brown Political Review and former Layout Director.