Thursday, May 10, 2007

Nude Workers Have Rights Too!

Can nude workers be treated differently than workers who are fully clothed? This is the question that the Court of Appeal took on recently. Windsor, Ontario, a city not unknown for its adult entertainment parlours, enacted a by law which required that “dancers” must pay a license fee of $466. The City's By-law provides:

a. “Dancer” means any person other than a
licensed owner or operator who provides services designed to appeal to erotic or
sexual appetites or inclinations at an adult entertainment
g. “Services designed to
appeal to erotic or sexual appetites or inclinations”
(i) services of which a principal
feature or characteristic is the nudity or partial nudity of any person.
For the purposes of this clause “partial nudity” shall mean less than completely
and opaquely covered:
• human genitals or
human pubic region;
• human buttocks;
• female breast below a point immediately
above the top of the areola.
services in respect of which the word “nude”, “naked”, “topless”,
“bottomless”, “sexy” or any other word or any picture, symbol or representation
having like meaning or implication is used in any advertisement

Madam Justice Gillese took issue with the meaning of dancer, stating:

According to the definition of “dancer” in the Licensing By-law, a person need
not perform any type of dance routine in order to be classified as a
dancer. In fact, that definition coupled with the definition of “services
designed to appeal to erotic or sexual appetites or inclinations”, makes it
clear that a person can provide any type of service in an adult entertainment
parlour and be classified as a dancer so long as, while performing the services,
the person is nude or partially nude. Thus, the classification as “dancer”
is not based on the work that the person regularly performs nor is it based on a
person’s employment responsibilities. Rather, the classification is based
on the amount of clothing that the person wears while performing any type of
work within an adult entertainment parlour. Consequently, for example,
under the Licensing By-law, a person who provides bartending services in an
adult entertainment parlour, while wholly or partially nude, is a “dancer” and
required to be licensed as such; whereas a fully clothed person performing
the same bartending functions is not required to pay the “dancer” licence

Thus, Gillese held that the law did not actually license dancers but rather it discriminated on the basis of the amount of clothing worn while working.

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