Clothing Exotic Dancers With Collective Bargaining Rights
ADRIENNE COUTO*
Around the world, the labour movement has Partout dans le moncle, le mouvement ouvrier begun to recognize that women employed in commence a reconnaitre que la femme travail- the sex industry are deserving of collective bar- lant dans 'industrie du sexe m6rite des droits gaining rights and protection. However, despite de n~gociation collective et la protection con- such recognition, exotic (lancers in Canada have nexe. Les danseuses 6rotiques du Canada, remained unable to access such rights. This toutefois, sont encore incapables de se pr6valoir paper explores the potential benefits of collec- de ces droits. Le present article explore les tive bargaining rights to exotic dancers and the avantages possibles des droits de nigociation 2006 CanLIIDocs 63 methods by which such rights might be attained collective pour les danseuses 6rotiques et les in Ontario. In doing so, the author argues that faqons (len assurer la misc en oeuvre en collective bargaining rights would be an effec- Ontario. L'auteur soutient que les droits de tive means of not only ameliorating exotic n~gociation collective seraient un bon moyen dancers' terms and conditions of work, but also non seulement d'amdliorer les conditions de of providing a sense of legitimacy and empow- travail des danseuses 6rotiques, mais aussi de erment to an otherwise stigmatized profession. donner A une profession autrement stigmatis~e Though there are a number of barriers to de la 16gitimit6 et du pouvoir. Malgr6 les multi- organizing, there are avenues through which ples obstacles A l'association, diverses avenues collective bargaining rights may be achieved. permettraient l'exercice des droits de n6gocia- For example, "house dancers," who work exclu- tion collective. Par exemple, les danseuses sively for one club, may claim their status as d'entreprise >>travaillant exclusivement pour un "dependent contractors" under the Labour club pourraient revendiquer Ic statut d'<
* Adrienne M. Couto, B. Comm., M.I.R., LL.B (Queen's University). Member of the Ontario bar and practitioner in the field of labour and employment law. The author would like to thank Professor Sara Slinn for her suggestions and comments on an earlier version of this paper. 38 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 38:1 38:1
Table of Contents
39 1. INTRODUCTION 41 II. WORKING CONDITIONS OF EXOTIC DANCERS 41 A. The Nature of the Work Performed 41 B. Terms and Condition of Work and the Ability of Dancers to Effect Change 42 1. Exploitation by Management 43 2. Health and Safety Risks 44 (a) Assaults and STIs 44 (b) Cleanliness and Condition of Clubs
45 (c) Risks Associated With Altering Appearance 45 3. Lack of Legal Protection
47 4. Negative Stigma 2006 CanLIIDocs 63 49 III. BENEFITS OF COLLECTIVE BARGAINING
50 A. International Unionization of Exotic Dancers 50 1. United States 52 2. United Kingdom 52 3. Australia 53 IV. ACCESSING COLLECTIVE BARGAINING 54 A. Barriers to Organizing 54 1 . Independent Contractor Status
55 2. Negative Stigma 56 3. Temporary Nature of the Work 57 4. Group Cohesion 57 5. Employer Tactics 58 B. Options for Gaining Access to Collective Bargaining Rights
58 1 . Access to Collective Bargainingfor "House"Dancers 59 2. Access to Collective Bargainingfor "Freelance"Dancers 60 (a) Sectoral Approach 60 (b) Establishment of Minimum Standards 60 (c) Legitimacy of the Profession 61 (d) Maintenance of"Independent Contractor"Status 61 3. Application of the Status of the Artist Act to Exotic Dancers 63 V. CONCLUSION Clothing Exotic Dancers With Collective Bargaining Rights
ADRIENNE COUTO
I. INTRODUCTION
Most women begin their workdays by dressing for work. Other women, however, 2006 CanLIIDocs 63 shed their clothes to earn a living and, in doing so, are left vulnerable to the exploits of an industry that denies them basic terms and conditions of work. Everyday, as exotic dancers in Canada strip away their clothes, they are also stripped of their rights, as workers, to adequate working conditions. Even though they are subject to management exploitation, poor working conditions and health risks, exotic dancers have few avenues by which they may seek recourse to improve their working lives. One avenue in particular that has, thus far, been inaccessible to these workers is unionization and collective bargaining. Although unionization and collective bargaining has great potential for amelio- rating these workers' lives, exotic dancers in Canada have had little success in access- ing these rights. In fact, as pointed out by one author, "unlike most workers who are customarily approached by union organizers these adult entertainers have had to go door-to-door . . . in an effort to find a union willing to represent them."' Although the Canadian Labour Congress2 and unions such as the Canadian Auto Workers (CAW) 3 and the Canadian Union of Public Employees (CUPE) 4 have recently addressed sex work as an issue requiring attention by the labour community, no con-
I. Holly J. Wilmet, "Naked Feminism: The Unionization of the Adult Entertainment Industry" (1998-99) 7 Am. U. J. Gender Soc. Pol'y & L. 465 at 466-67. See also "Editorial: The unionisation of sex workers," online: (2005) 12:4 Journal of the International Centre forTrade Union Rights at 2
crete measures have been taken to provide exotic dancers with collective bargaining rights. In fact, CUPE has bluntly stated that it "is not seeking to organize sex work- ers," which includes erotic dancers.' Rather, CUPE "has called upon the Canadian Labour Congress to investigate the possibility of sex workers getting union repre- sentation. "'6 Similarly, the CAW has taken an investigatory approach to the issue, stat- ing, "[wle need to seriously consider whether unionization is an appropriate and effective way of supporting sex trade workers."7 It is now time to move from an investigation to a complete recognition that collective bargaining rights for exotic dancers are not only appropriate, but also a highly effective means of ensuring that these workers are afforded, at a minimum, the basic terms and conditions of work. This paper explores how exotic dancers8 in Ontario may benefit from unionization and collective bargaining rights and suggests how such rights may be attained. 9 In analyzing this issue, the working conditions of exotic dancers and the vari- 2006 CanLIIDocs 63 ous grievances that may trigger a desire amongst dancers to unionize are outlined in Part II of this paper. In Part 111, consideration is given to how collective bargaining rights may improve working conditions for exotic dancers, by illustrating the gains made by other dancers across the world who have successfully organized. Part IV then considers how collective bargaining rights may be accessed. This will be accom- plished by reviewing the current barriers to organizing and suggesting possible routes by which collective bargaining rights may be achieved. Through this analysis, it becomes evident that exotic dancers would benefit greatly from access to collective bargaining rights. Despite the barriers that exist, there are viable means for achieving such rights. It is time for the labour community to take action and ensure that exotic dancers, as workers, are protected by collective bargaining rights.
5. Ibid. at 4.Note, the definition of "sex work" provided by CUPE at page 1 of the paper includes "erotic danc- ing." 6. Ibid. 7. Canadian Auto Workers Union, supra note 2. 8. Please note that exotic dancers are also known as "strippers,""stripteasers," "table dancers," "go-go dancers," and "adult entertainers." See Scott A. Reid, Jonathan S. Epstein & D.E. Benson, "Role Identity in a Devalued Occupation: The Case of Female Exotic Dancers" (1994) 27:1 Sociological Focus 1 at 2; James K. Skipper, Jr. & Charles H. McCaghy, "Stripteasers: The Anatomy and Career Contingencies of a Deviant Occupation" (1970) 17:3 Social Problems 391. Although the term "exotic dancer" is used throughout this paper, this term is meant to encompass all of these alternative terms. 9. The author recognizes that there are other methods of improving the working conditions of exotic dancers, such as the application and enforcement of employment and health and safety legislation to exot- ic dancers. While such alternatives are certainly worthy of further exploration, they are outside the scope of this paper. In particular, the author has chosen to focus on collective bargaining due to its unique char- acteristics and its potential benefits when applied to exotic dancers. For a further discussion, please refer to Part III of this paper. CLOTHING EXOTIC DANCERS WITH 41 COLLECTIVE BARGAINING RIGHTS
II. WORKING CONDITIONS OF EXOTIC DANCERS
To understand how exotic dancers would benefit from collective bargaining rights, it is first necessary to assess both the nature of the work performed and the terms and conditions exotic dancers face.
A. The Nature of the Work Performed As described by Forsyth and Deshotels, "[t]he principal occupational endeavor of the female stripper entails taking off her clothing in a suggestive way or dancing partial- ly clad for financial remuneration.""° At most clubs, women perform two types of dances: stage dances and table dances.1" During a stage dance, a dancer will perform to a series of songs in which she progressively removes articles of clothing, ending in "floor work" aimed at exhibiting her genitals. 2Table dancing, on the other hand, is a private show which occurs either in a visible area within the club or in a private room 2006 CanLIIDocs 63 for a customer. 11 It is during these private dances that "lap dancing" occurs, where a dancer gyrates on a customer's lap. 14
B. Terms and Condition of Work and the Ability of Dancers to Effect Change In the context of the work performed, as described above, an exotic dancer may be subject to a number of grievances compelling unionization or collective bar- gaining.'" The most significant of these grievances are management exploitation and the health risks associated with dancing. Meanwhile, the lack of legal protec- tions afforded to dancers, as well as the stigma associated with this profession, negatively impact the ability of dancers to effect change. Together, as outlined below, these factors may compel a desire amongst dancers to access representation and collective bargaining rights.
10. Craig J.Forsyth & Tina H. Deshotels, "The Occupational Milieu of the Nude Dancer" (I997) 18:2 Deviant Behavior 125 at 125 [Forsyth & Deshotels, "Occupational Milieu"]. See also Craig J. Forsyth &Tina H. Deshotels, "A Deviant Process:The Sojourn of the Stripper" (1998) 18:1 Sociological Spectrum 77 at 78 [Forsyth & Deshotels, "Deviant Process"]; Reid, Epstein & Benson, supra note 8. 11. Latin American Coalition to End Violence Against Women and Children, Coming to Dance, Striving to Survive:A Study on Latin American AligrantExotic Dancers (July 2002), online: Mujer
1. Exploitation by Management There is little dispute amongst researchers that money is the primary motivation behind a woman's decision to become an exotic dancer. 6 In fact, the entrance into exotic dancing is often precipitated by a financial crisis.' 7 An exotic dancer "is often a student, a single mother, or unskilled in other work and lacks bargaining power to assure that her rights will be protected."'8 Indeed, since exotic dancers tend to have limited prospects outside of exotic dancing,'9 or can earn more from (lancing than in other available occupations,20 they are often financially dependent on exotic dancing and are left in a weak bargaining position. In turn, management uses such financial dependency against the dancers through threats and exploitation. 2' Dancers may be subject to management's house rules, requirements to buy expensive costumes, pressure to partake in cosmetic sur- gery and tactics designed to increase competition amongst dancers leading to "more 22 sexually explicit behavior than is customary." 2006 CanLIIDocs 63 Management's power is also heightened by threats of retaliation. Given the dancers' state of financial dependence, such threats create fear amongst dancers who, as a result, may remain silent about their working conditions.2" Indeed, such fear is
16. See Judith Lynne Hanna, "Undressing the First Amendment and Corsetting the Striptease Dancer" (1998) 42:2 The Drama Review 38 at 58; Jacqueline Lewis, "Learning to strip:The socialization experiences of exotic dancers" (1998) 7:1 The Canadian Journal of Human Sexuality S1; Skipper, Jr. & McCaghy, supra note 8 at 398; Forsyth & Deshotels, "Deviant Process," supra note 10 at 85; Constance Bernard et al., "Exotic Dancers: Gender Differences in Societal Reaction, Subcultural Ties, and Conventional Support" (2003) 10:1 Journal of Criminal Justice and Popular Culture 1at 1; Sarah Chun, "An Uncommon Alliance: Finding Empowerment for Exotic Dancers through Labor Unions"(1999) 10 Hastings Women's L.J. 231 at 232. 17. See e.g. Forsyth & Deshotels, "Occupational Milieu," supra note 10 at 126, wherein it is stated: "Itihe sugges- tion that a financial crisis accounts for the initiation of the vast majority of dancers has been consistently sported by the literature." 18. Heidi Machen, "Women's Work: Attitudes, Regulation and Lack of Power within the Sex Industry" (1996) 7 Hastings Women's L.J. 177 at 182. See also Chris Bruckert, Taking it Off Putting it On:Women in the Strip Trade (Toronto: Women's Press, 2002) at 138: "For many dancers, multiple social and family obligations (not infre- quently including being sole-support parents) combined with the decline of the social safety net precludes participation in traditional labour arrangements." 19. See Eleanor Maticka-Tvnlale et al., "Exotic Dancing and Health" (2000) 3 1:1 Women & Health 87 at 97. See also Forsyth & Deshotels, "Occupational Milieu," supra note 10 at 126, where they state: "[tihe choice of stripping as a livelihood is made with the knowledge that more money can be made by stripping than in a more legitimate occupation."Accord Skipper, Jr. & McCaghy, supra note 8 at 398, where it was found in their study that "of the 35 girls interviewed only one had the talent, training, or education to make more money at any other legal occupation than stripping." 20. See Machen, supra note 18 at 182; Bruckert, supra note 18 at 138; Latin American Coalition to EndViolence Against Women and Children, supra note 11. 21. Chun, supra note 16 at 234. 22. Hanna, supra note 16 at 60. See also Amber Cooke, "Stripping: Who Calls theTune?" in Laurie Bell ed., Good Girls/Bad Girls: Sex Trade iorkers and Feminists Face to Face (Toronto: Women's Press, 1987) 92 at 98; Lynn McDonald, Brooke Moore & NatalyaTimoshkina, Migrant Sex Workersfrom Eastern Europe and the Former Soviet Union:The Canadian Case (Ottawa: Status of Women Canada, 2000) at 48-49; Latin American Coalition to End Violence Against Women and Children, supra note 11 at 47. 23. See Chun, supra note 16 at 234 and Machen, supra note 18 at 182. CLOTHING EXOTIC DANCERS WITH 43 COLLECTIVE BARGAINING RIGHTS
well-founded, since dancers who complain are often fired or blackballed.2 4 As Machen points out, "[mianagement makes it clear that an erotic dancer is highly expendable and this assures them of a compliant group of performers."25 Furthermore, it is important to note that a considerable number of women who work as exotic dancers are recent immigrants.16 While some come legally, oth- ers are trafficked.27 Although the reasons for their entrance into Canada and the exot- ic dancing industry vary, many of these women come to Canada for economic reasons or to escape the difficult circumstances they faced in their home country.28 As such, these women are in a vulnerable position. Not only do they face cultural, language29 and financial barriers, they may also fear deportation and, thus, be particularly sus- ceptible to management exploitation and control.30 In particular, those women who are trafficked are at a heightened risk of exploitation by management and, in some cases, may not be paid at all for the work they perform. 3 2006 CanLIIDocs 63 2. Health and Safety Risks The work of an exotic dancer is also fraught with health and safety risks ranging from the risk of being assaulted and contracting a sexually transmitted infection (STI) to the dangers of dancing in stiletto heels.
24. See Hanna, supra note 16 at 60; Chun, supra note 16 at 234. See also Jane, "No Justice, No Piece!: Strippers Ratify Union Contract" (6 December 1997), online: Bayswan Website
(a) Assaults and STIs Perhaps the gravest risks faced by exotic dancers are those involving assaults and "infectious diseases." 2 In particular, the risk of contracting an STI is acute in clubs where lap dancing occurs in private rooms."3 In these rooms, physical contact, includ- ing oral sex, voluntary sexual intercourse and, physical and sexual assaults sometimes occur.3 4 In fact, in their study, Maticka-Tyndale et al. found that in clubs "where lap dancing was permitted, where there were unmonitored private areas, or where it was known that bouncers and monitors placed the desires of the customer ahead of the safety of the dancer," assaults and "voluntary sexual contact" were more common than otherwise. 5 Furthermore, most dancers interviewed in Bruckert, Parent & Robitaille's study, "reported incidences of violence (often sexual) against them."3 6 Indeed, even in the public areas of clubs, women are often subject to verbal harass- ment and unwanted sexual touching.3 7
Assaults may also arise from customers who misinterpret the "emotional 2006 CanLIIDocs 63 labour" s or "counterfeit intimacy" 9 of a dancer's job. Sometimes, these "customers 40 [carry] 'in club' fantasies outside the club to stalk, harass, or assault dancers." Such physical assaults can be emotionally detrimental to the dancers and can have severe effects on their lives. For example, dancers in the Maticka-Tyndale et al. study reported having, "[n]ightmares, uncontrollable crying before going to work, crying and rage to the point of being unable to continue working when they were touched or assaulted, and not wanting to be touched by significant others after work, and difficulties forming and maintaining relationships."4
(b) Cleanliness and Condition of Clubs Even where there is no contact between customers and dancers, health and safety risks arise from the general cleanliness of the clubs. 42 During the course of their per-
32. See Chris Bruckert, Colette Parent & Pascale Robitaille, "Erotic Service/ Erotic Dance Establishments: Two Types of Marginalized Labour" (January 2003) online: Law Commission of Canada at 49
(c) Risks Associated With Altering Appearance Exotic dancers are also under considerable pressure to maintain an attractive and desirable appearance. As such, dancers have "reported feeling [the need] to diet, work out . . . and to have a perpetual, full body tan."46 Such measures may have adverse
health consequences for dancers. Further, the requirement to wear stilettos may 2006 CanLIIDocs 63 47 result in falls, sprains, strains and pain.
3. Lack of Legal Protection As explored further in Part IV, many exotic dancers are classified as "independent contractors" rather than "employees." 4 As a result, dancers have no recourse to laws aimed at protecting employees such as employment standards, workers' compensa- tion, unemployment insurance or human rights legislation. 49 Quite to the contrary, exotic dancers have no guarantee to even basic standards of work. In fact, as inde- pendent contractors, exotic dancers do not receive a wage, nor are they afforded any job stability5° or benefits.5 Rather, instead of a minimum wage, dancers are required to pay the club for the "privilege" of dancing there. 2 In turn, dancers earn income solely from tips and payments from customers,5" which they may be required to share
43. Maticka-Tvndale et al., ibid. at 99. See also Bruckert, Parent & Robitaille, ibid. at 49. 44. Maticka-Tyndale et al., ibid. See also Bruckert, supra note 18 at 72; McDonald, Moore & Timoshkina, supra note 22 at 51. 45. Latin American Coalition to End Violence Against Women and Children, supra note 11 at 45. 46. Maticka-Tvndale et al., supra note 19 at 99. 47. See ibid. at 100. See also Bruckert, Parent & Robitaille, supra note 32 at 49; Bruckert, supra note 18 at 72; Latin American Coalition to End Violence Against Women and Children, supra note 11 at 47. 48. See Part IV (A)(I)-"Independent Contractor Status." 49. See Carrie Benson Fischer, "Employee Rights in Sex Work: The Struggle for Dancers' Rights as Employees" (1996) 14 Law and Inequality 521 at 523. See also Employment StandardsAct, S.O. 2000, c. 41, ss. 1, 3 (appli- cation and definition of"employee"); Workplace Safety and InsuranceAct, S.O. 1997, c. 16, ss. 11-12, 2(1) (deli- nition of worker); Human Rights Code, R.S.O. 1990, c. H-19, s.5(1). See also Becki L. Ross, "Bumping and Grinding On the Line: Making Nudity Pay" (2000) 46 Labour/LeTravail 221 at 235, where she notes that the former dancers she interviewed had no access to vacation pay, sick leave, disability leave, or pension plans. 50. See Bruckert, Parent & Robitaille, supra note 32 at 47; Chun, supra note 16 at 236; Machen, supra note 18 at 177. 51. See Minal A. Shah, "Introduction" (1999) 10 Hastings Women's Law Journal I at 2; Machen, supro note 17 at 177; Bruckert, Parent & Robitaille, ibid. at 47 (regarding benefits). 52. See Chun, supra note 16 at 236; Machen, ibid. at 178; Cooke, supra note 22 at 97. .6 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 38:1 38:1
with other employees in the club or with management.5 4 Thus, on a "bad night" these dancers could earn less than the fees they are required to pay.55 Moreover, rather than being protected by the law, exotic dancers are at risk of criminal sanction. Part V of the Criminal Code56 governs "Sexual Offences, Public Morals, and Disorderly Conduct." Within this part of the Criminal Code, those provi- sions under the "Offences Tending to Corrupt Morals" and "Disorderly Conduct," have had the greatest impact on exotic dancers.5 7 In particular, under section 167, "Immoral Theatrical Performance," dancers are at risk of being charged with taking part in an "indecent," "immoral," or "obscene" performance. 8 As can be seen, the Criminal Code provisions are primarily directed at protecting the public rather than the dancers. The courts, on the other hand, have been instrumen- tal in reducing the risk of dancers being subjected to sexually transmitted infections by 5 declaring that lap-dancing is illegal. 9 Similarly, in Toronto, By-law 32-574-2000 pro- hibits touching or physical contact between dancers and customers. 6° Despite these deci- 2006 CanLIIDocs 63 sions and laws, however, it is clear that lap dancing still occurs in clubs. 61 As well, it should be noted that in Toronto, dancers must purchase licences. 62 On the one hand, the requirement to obtain a permit "neutralizes judicial interven- tion for permit holders who comply with the conditions ,"63 and may legitimize the 64 industry. On the other hand, however, the requirement to obtain a license may mean " increased control [and] marginalization with potentially long-lasting stigma-
53. See Fischer, supra note 49 at 523; Machen, ibid. at 178. See also Maticka-Tyndale et al., supra note 19 at 97, where it is noted that dancers may earn income from direct payments from customers in the form of fees for private dances which range from anywhere between $5 to $20 per dance. 54. See Fischer, ibid. 55. See Maticka-Tyndale etal., ibid. at 97. 56. Criminal Code, R.S.C. 1985, c. C-46 [CriminalCode]. 57. See Latin American Coalition to End Violence Against Women and Children, supra note 11. For other sec- tions of the Criminal Code that may impact exotic dancers, see s. 163 (crorrupting morals), s. 173 (indecent acts), s. 174 (nudity), s. 175 (causing disturbance, indecent exhibition, loitering, etc.), s.210 (keeping com- mon bawdy-house), s. 213 (offence in relation to prostitution). 58. Criminal Code, ibid. at s. 167. See also R v. Butler, [1992] 1 S.C R. 452, 89 D.L.R. (4th) 449 (whether the act is "indecent," "immoral" or "obscene" is assessed according to a "community standards of tolerance" test). 59. See R v.Mara, [1997] 2 S.C.R. 630, 148 D.L.R. (4th) 75, wherein the Supreme Court of Canada found that lap-dancing contravened the community standards of tolerance test and thus held that it was illegal. Note, however, the decision only addressed lap dancing in public and, therefore, whether lap dancing in pri- vate rooms is illegal is still open for debate. See also Latin American Coalition to End Violence Against Women and Children, supra note 11;Lewis, supra note 16; Maticka-Tyndale etal., supra note 19. 60. See Bruckert, Parent & Robitaille, supra note 32 at 18, where it is noted the by-law was enacted on the rea- soning that" lap dancing could expose workers to fatal illness," a matter of health and safety and, thus, a jurisdiction belonging to municipalities under s. 150(2)(1) of the Ontario Municipal Act, 2001, S.O. 2001 c.25; Latin American Coalition to End Violence Against Women and Children, ibid. 61. See Latin American Coalition to End Violence Against Women and Children, ibid.; Maticka-Tyndale et al., supra note 19 at 93. See also Macklin, supra note 26 at 468-70, for a discussion of the laws as they pertain to exotic dancing. 62. See Cooke, supra note 22 at 96. 63. Bruckert, Parent & Robitaille, supra note 32 at 18. 64. ibid. at 18 citing Cooke, supra note 22 at 96. But see Mary Johnson, "CABE and Strippers: A Delicate Union" in Laurie Bell ed., Good Girls/BadGirls: Feminists and Sex Trade Workers Face to Face (Toronto: Women's Press, 1987) 109; Bruckert, supra note I8 at 55. CLOTHING EXOTIC DANCERS WITH 47 COLLECTIVE BARGAINING RIGHTS
tizing effects, and the prevention of some women (those with criminal records) from 65 joining the profession." Therefore, on the whole, there appears to be no effective legal protections to ensure adequate working conditions for dancers. Rather, it appears that dancers are left to enforce whatever rights they have through litigation, which involves not only time and cost, but also the risk of termination .66 In this context, dancers are left with few avenues by which they may effect change to their working lives.
4. Negative Stigma Further impacting the ability of dancers to effect change in their working lives, is the negative stigma associated with exotic dancing. Although exotic dancing is legal, it is typically regarded as an illegitimate career choice. 67 In reality, both the dancers and the strip clubs in which they work operate in a highly stigmatized environment. Strip clubs are often associated with illegal activities such as prostitution6 and 2006 CanLIIDocs 63 drug use. 69 Perhaps this is why they are often accused of corrupting the general pub- lic and "leading otherwise respectable citizens astray."7 ° Thus, a great deal of focus has been placed on resisting the spread of strip clubs and curtailing their activities. 7 As part of this effort, numerous laws and regulations have been enacted to confine strip 72 clubs and dancers. Meanwhile, dancers must cope with the imposition of a high degree of stig- ma. As one author points out, throughout the 20' century in Canada, "women who marketed their sex-related skills found themselves at once desired and [emphasis in
original] criminalized, or at the very least, scorned and marginalized . . .. -7 Women who work as exotic dancers are often viewed in a very negative light and as "lazy, stu- pid and prostitutes. 7 4 In short, the work of an exotic dancer is not seen as a legiti-
65. Bruckert, Parent & Robitaille, ibid. at 18. See also Cooke, ibid. at 96-97. Accord Bruckert, ibid. at 55. 66. See Chun, supra note 16 at 234. 67. See ibid. at 233; Bernard et al., supra note 16 at 3; Maticka-Tyndale et al., supra note 19; Bruckert, Parent & Robitaille, supra note 32 at 51; McDonald, Moore &Timoshkina, supra note 22 at 55. 68. See Chun, ibid. at 233; Bruckert, supra note 18 at 153. 69. See Bruckert, ibid. at 132-33; McDonald, Moore & Timoshkina, supra note 22 at 51. See also Latin American Coalition to End Violence Against Women and Children, supra note I I at 56, where it was noted that drug and alcohol use is one way by which women reported being able to do their job and cope with the stigma. 70. Deborah R. Brock, Making Work, Making Trouble: Prostitution as a Social Problem (Toronto: University of Toronto Press, 1998) at 33. See also Katherine Liepe-Levinson, Strip Show: Performances of Gender and Desire (New York: Routledge, 2002) at 10, where she states: "Such entertainments are said to encourage prostitu- tion, promiscuity, and adultery-all of which undermine the foundations of Western religion and good citi- zenship." 71. See e.g. Brock, ibid. at 34-37, where she describes the move in the 1970's to "clean-up" the adult entertain- ment establishments of Toronto'sYonge Street and implement laws and regulations to control the industry. See also Bruckert, supra note 18 at 141, where she describes the "moral regulation" of stripping; Ross, supra note 49 at 228-33. 72. See section 3, above. 73. Ross, supra note 49 at 225. 48 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 38:1 38:1
mate career, but rather as a "highly stigmatized deviant occupation."75 Indeed, much of the research on exotic dancers has focused on the "deviant" lifestyles, roles and identities of these women.76 Given this stigma, dancers face a difficult situation. Although exotic dancing may be a source of income, and perhaps even a source of enjoyment and pride, exot- ic dancers may be reticent to reveal their career choice. Indeed, the dancers inter- viewed by Ross reported they were, "subjected to criminal and social sanctions that pressured them to be ashamed of their work, to pretend that they did something else for a living, or to abandon their careers as dancers altogether."77 As such, dancers have reported feelings of "shame, embarrassment, solitude, living a double life, and doing something dirty . .. -" In this context, it is not surprising that secrecy marks the lives 79 of exotic dancers. As a result, dancers often do not tell their families or friends about their career and, in turn, lack the support networks that are usually available to other 2006 CanLIIDocs 63 workers.80 Further, due to the stigma experienced in the broader community,8" 82 dancers may lack social networks or be reluctant to access social support services. As well, the negative stigma experienced by dancers directly affects their working conditions and their ability to effectuate change in them. For example, the pressure to keep their work a secret may contribute to a dancer's reluctance to report workplace inequities.8 3 Further, stigma tends to shape the labour environment with- in a club, since managers view dancers "as deviant .. .workers who are unreliable, juvenile and unprofessional." 4 Such views of dancers then fuel management's ration- ale for controlling the dancers."s Finally, it is important to note that the stigma of being a dancer may carry over from work at the club to everyday life. 6 Stories such as an employer at another job expecting sexual favours, a landlord assuming a dancer would have sexual intercourse
74. Latin American Coalition to End Violence Against Women and Children, supra note 11 at 53. 75. William E.Thompson, Jack L. Harred & Barbara E. Burks, "Managing the Stigma ofTopless Dancing: a Decade Later" (2003) 24 Deviant Behaviour 551 at 552. See also Skipper, Jr.& McCaghy, supranote 8 at 392, wherein it is stated that "[dlespite liberalization, stripping remains a deviant or at best marginal occupa- tion." 76. See e.g. Boles & Garbin, supra note 39; Forsyth & Deshotels, supra note 10; Lewis, supra note 16; Reid, Epstein, & Benson, supra note 8; Skipper, Jr. & McCaghy, supra note 8; William E.Thompson & Jackie L. Harred, "Topless Dancers: Managing Stigma in a Deviant Occupation" (1992) 13 Deviant Behaviour 358. 77. Ross, supra note 49 at 247. 78. Latin American Coalition to End Violence Against Women and Children, supra note 11 at 58. 79. See Teela Sanders, SexWork:A Risky Business (Portland: Willan, 2005) at 117; Latin American Coalition to End Violence Against Women and Children, supra note I1 at 53. 80. See Chun, supra note 16 at 233; Bernard et al.,supra note 16 at 3 (regarding the lack of social acceptance). 81. See Latin American Coalition to End Violence Against Women and Children, supra note I I at 53. 82. See e.g. ibid. at 55, where one dancer "stated that she had difficult accessing services in a shelter because dancers are not considered to be women who face abuse. She went to three shelters before she was given adequate service." 83. See Chun, supranote 16 at 233. 84. Bruckert, supra note 18 at 147. 85. ibid. CLOTHING EXOTIC DANCERS WITH 49 COLLECTIVE BARGAINING RIGHTS with his friends, and police declining to investigate alleged assaults pervades. 7 As described by Maticka-Tyndale et a]., "[tihe stigmatization and outcast status of exotic dancers was not something they could leave at work, it followed them everywhere."8 Even after these workers cease to be exotic (lancers, the stigma associated with being one hinders these women in pursuing other careers.89 Effectively, these women become consumed and trapped by the stigma attached to exotic dancing, leaving them facing discrimination and with few resources or choices. All together, then, it can be seen that exotic dancers suffer from management exploitation, poor working conditions and health risks without the benefit of legal protection or the ability to effectuate change. It is these factors which may prompt a desire to organize and, therefore, bolster the bargaining position of these workers and, thus, the protections afforded to them.
I1. BENEFITS OF COLLECTIVE BARGAINING 2006 CanLIIDocs 63
Representation and collective bargaining rights would be an effective means of addressing many of the negative aspects of exotic dancing identified in Part II. Representation could potentially have the effect of elevating the bargaining power of exotic dancers and providing protection against management exploitation. Like other workers, exotic dancers would have a means of asserting their rights and an avenue for recourse against arbitrary management action. 90 Not only would exotic dancers be able to bargain for better terms and conditions of work, but representation would provide support and legitimacy to this otherwise stigmatized profession. At the same time, it is important to note that other methods exist for attain- ing better terms and conditions of work. For example, employment standards and health and safety legislation could be extended to exotic dancers, or municipal by- laws could be enacted to counter some of the health and safety risks in strip clubs. While these alternatives are certainly worthy of consideration and should be explored, they are not a substitute for collective bargaining, nor can they, on their own, adequately address the circumstances of exotic dancers. Due to their weak bar- gaining position and the stigma that surrounds them; many exotic dancers lack the ability to effectively enforce their rights under such legislative schemes. As previous- ly discussed, dancers may be reluctant to report workplace inequities.9' Moreover, they may not be able to afford the cost and risk associated with challenging strip club
86. Maticka-Tyndale et al.,supra note 19 at 98 and Bruckert, supra note 18 at 128. 87. Maticka-Tyndale et al.,ibid. at 98. Also see Bruckert, Parent & Robitaille, supra note 32 at 51-53. 88. Maticka-Tyndale et al., ibid. at 98. 89. ibid. at 103. See also Bruckert, Parent & Robitaille, supra note 32 at page 53. One dancer in the study by Bernard et al.,supra note 16 at 6, noted, "I have lost jobs in the past because employers found out [that she dancedl." 90. Chun, supra note 16 at 252. 91. See Part 11(B)(4), above. 50 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 38:1 38:1
owners and managers. Therefore, although such legislation may technically provide better terms and conditions of work, in reality, dancers may not realize its benefits without an enforcement mechanism. On the other hand, organization and representation by a union would provide the voice needed to not only enforce the rights of exotic dancers, but also to strengthen their position at the bargaining table. Furthermore, being organized and represented by a recognized union would bring legitimacy to the position of exotic dancers as workers rather than as sexual deviants. In turn, such recognition as work- ers may reduce the stigma surrounding exotic dancing. Finally, unions may effective- ly provide a social support network and resources that exotic dancers currently lack.92 In total, unionization and access to collective bargaining rights addresses the needs of exotic dancers more comprehensively than improvements to employment and health laws governing exotic dancers. 2006 CanLIIDocs 63 A. International Unionization of Exotic Dancers Perhaps the best way of illustrating the advantages of unionization and collective bar- gaining is to look to the international scene, where unionization of exotic dancers has been both effective and advantageous.
1. United States In 1996, "dancers at the Lusty Lady in San Francisco voted 57-15 in favor of repre- sentation by Local 790 of the Service Employees International Union."9' In doing so, the dancers made history by becoming the first successful women-managed strip club to unionize a strip club in the United States.9 4 The major issues prompting these dancers to unionize were "racist hiring practices, customers being allowed to video- tape dancers without their consent via one-way mirrors, inconsistent disciplinary policies, lack of health benefits, and an overall dearth of job security." 5 One dancer describes the sentiments that were culminating amongst dancers and which led to the ultimate unionization of the club as follows:
As soon as we announced our plans to unionize, the management removed the one-ways, but also refused to recognize the union, and hired a law firm infamous for busting unions. Though the one-ways were gone, the power inequity their presence symbolized was still festering: favoritism was the norm, the company's disciplinary policy was
92. As discussed in Part 11 (B)(4), above. 93. Chun, supra note 16 at 248; Jane, supra note 24. 94. Siobhan Brooks, "Exotic Dancing and Unionizing: The Challenges of Feminist and Antiracist Organizing at the Lusty Lady Theater" (Spring 2005) 33(2) SIECUS Report at 12. Note that the bargaining unit consisted of not only dancers but also cashiers, janitors and security staff at the Lusty Lady Theater: Jane, supra note 24. According to Steinberg the negotiated contract covered approx 30 cashiers and janitors in addition to 70 to 75 dancers: David Steinberg, "Comes Naturally #58: Lusty Lady Dancers Ratify Union Contract" Spectator Magazine (2 May 1997), online: sexuality.org: society for human sexuality
unwritten and erratically and inconsistently applied, dancers had their pay cut in half for missing a staff meeting or calling in sick, and were suspended for reasons like not smiling enough. Like all other non-union workers, we had virtually no recourse if we were sus- pended or fired unfairly. We knew a union contract could temper these injustices and 96 hold the company accountable for its actions.
Although negotiations were protracted and difficult, a contract was reached on April 4, 1997. 9' According to Stephanie Batey, the Service Employees International Union (SEIU) representative who negotiated the contract, this contract stood as the "only union contract for strippers in the U.S."9 The contract provided four paid sick days, guaranteed work shifts, "protection against arbitrary discipline and termination,"99 language governing sexual harassment and racial discrimination policies, wage increases, free shift trades,'00 and a grievance procedure.'0 ' Moreover, the contract brought a sense of justice and security to workers at the Lusty Lady. In the words of one of the dancers: 2006 CanLIIDocs 63
With unionization, there was an overall feeling that as a sex worker, one had rights, and one couldn't just be fired without a voice, which had happened frequently at the Lusty Lady. Now we knew that management was required to follow a contract and accept cer- 02 tain procedures, such as just cause policies. 1
Another dancer and organizer, states:
The union has been really effective. We have much better working conditions now. They can't fire us without just cause; we have a point-system so that it's much more uniform; we are working to get ridof discriminatory policies; management can't cut our pay in half for any reason; we have sick days; we aren't scheduled based on race or breast size anymore; if you are sick you can either call in and have them replace your shift, or you can replace it yourself with somebody, but it can be anybody in the list. And we are better paid!'0 3
96. Jane, ibid. 97. Steinberg, supra note 94. 98. Steinberg, ibid. Note, however, that the employer has since closed the club; in 2003, the dancers and other staff bought the club and turned it into a "workers' cooperative," Gall, supra note 15. 99. Steinberg, ibid. 100. As explained by Brooks, supra note 94 at 15 n.3, with respect to "free shift trades," "[plrior to unionization, dancers had to find a dancer of their own race and body type to trade shifts or give them away." 101. Brooks, ibid. at 14 and Steinberg, supra note 94. 102. Brooks, ibid. 103. "Interview with Julia Query" (28 January 2001) online: Respect! The Journal of the International Union of Sex Workers
2. United Kingdom A unionization movement is also afoot in the United Kingdom. Dancers there have begun to "see themselves as workers with economic and labour rights.1 °4 In 2002, the International Union of Sex Workers (IUSW) joined with the GMB-Britain's General Union." 5 The GMB's entertainment and sex branch now has approximately 200 members.0 6 Since teaming with the IUSW, the GMB has unionized and gained 0 7 recognition agreements at three lap-dancing clubs in Britain.1 With union representation, dancers have been able to access grievance proce- dures and collective bargaining rights over the terms and conditions of their work, including pay.' In addition, "[b]oth sex workers and trade unions have coalesced around issues of respect, dignity and justice."'1 9 Further, as members of the GMB, exotic dancers have been able to access information, support, legal and employment advice, and training and development."0 2006 CanLIIDocs 63 3. Australia Similarly, a movement is also underway in Australia. The Striptease Artists of Australia Inc. (SAA) was formed in 1998 and became a registered union to represent exotic dancers in 2002."' Prompting such representation was a desire for "better pay and working conditions.""I2 Thus, in December 2005, at a hearing before the Australian Industrial Relations Commission, the SAA presented a log of claims which sought fair pay and formal work conditions for "striptease artists."' Some of their complaints 1 4 included the shift fees they were required to pay, income, job security and safety. On December 13, 2005, the union secured an order from the Australian Industrial Relations Commission that the employers negotiate the dancers' demands for better wages and working conditions. " 5 Although it may be too early to tell, it appears that dancers in Australia are well on their way to achieving substantive gains.
104. Gregor Gall, cited in Polly Curtis, "Nottingham hosts talk on sex workers' unions" The Guardian (I July 2004), online: Guardian Unlimited
As demonstrated by the unionization efforts internationally, representation and access to collective bargaining can be an effective means of gaining better wages and working conditions for exotic dancers." 6 It appears that when engaged in con- certed action and represented by a union, exotic dancers are able to improve their working lives." 7
IV. ACCESSING COLLECTIVE BARGAINING
Despite the international movement to unionize exotic (lancers, the unionization of this group in Canada has had little success."" Given that significant gains can be achieved in doing so, the question arises as to why such unionization has not yet occurred. Certainly, the lack of unionization does not stem from a want of desire to organize or engage in collective action. As early as 1979, exotic dancers in Canada
have attempted to form unions and other groups to represent the interests of 2006 CanLIIDocs 63 dancers. For example, in 1979, a number of exotic dancers formed The Canadian Association of Burlesque Entertainers (CABE), Canada's first exotic dancers' union."19 Although CABE was unsuccessful in gaining certification at several estab- lishments 2 ' and folded in 1982,121 many other groups have since been formed to advocate for representational rights and better working conditions for exotic dancers. Sex worker groups representing exotic dancers in Canada include: the Coalition for the Rights of Sex Workers, 122 The Exotic Dancers' Association of Canada, 123 the Canadian Guild for Erotic Labour, 124 the London Alliance to Support Sex Trade, Maggie's, 125 Canadian Organization for the Rights of Prostitutes,
115. "Strippers have early win in IR case" The Sydney Morning Herald (13 December 2005), online: The Sydney Morning Herald
Stella E6 and various Sex Workers' Alliances."2 VThe answer, then, seems to lie not in a lack of desire to unionize but in a number of barriers.
A. Barriers to Organizing There are a number of barriers that hinder the ability to organize in the exotic dancing industry. These barriers include: the status of exotic dancers as "independent contrac- tors," the effects of negative stigma, the temporary nature of the work, the lack of group cohesion amongst dancers and employer tactics designed to subvert unionization.
1. Independent Contractor Status One of the major impediments to the organization of exotic dancers in Ontario is their status as "independent contractors." 28 Under the Labour Relations Act,' 29 only "employees" or "dependent contractors" may engage in collective bargaining. 30 In
determining whether an individual is an employee, the Board will look to a number 2006 CanLIIDocs 63 of factors which may support a finding that an individual is "self-employed":
1 The use of, or right to use substitutes; 2. Ownership of instrumentalities, tools, equipment, appliances, or the supply of materials; 3. Evidence of entrepreneurial activity; 4. The selling of one's services to the market generally; 5. Economic mobility or independence, including the freedom to reject job opportuni- ties, or work when and where one wishes; 6. Evidence of some variation in the fees charged for the services rendered; 7. Whether the individual can be said to be carrying on an "independent business" on his own behalf rather than on behalf of an employer or, to put it another way, whether the individual has become an essential element which has been integrated into the operating organization of the employing unit; 8. The degree of specialization, skill, expertise or creativity involved; 9. Control of the manner and means of performing the work-especially if there is active interference with the activity; 10. The magnitude of the contract amount, terms, and manner of payment; II. Whether the individual renders services or works under conditions which are similar to persons who are clearly employees. 131
126. See online: Stella
Applying these factors, freelance exotic dancers, who perform at a number of establishments and receive no wages, but rather access to clients,'32 are likely to be classified as independent contractors rather than employees. Indeed, such was the finding of the Ontario Labour Relations Board (OLRB) in Algonquin Tavern.' 33 In this case, the Canadian Association of Burlesque Entertainers applied for certification of exotic dancers who performed, on occasion, at the four respondent taverns. At issue in this case was whether these freelance dancers were "dependent contractors" or "independent contractors." Applying the factors above, the OLRB found that the (lancers were, in fact, independent contractors. Of particular relevance in reaching this finding were the transitory nature of the work and the absence of management control. The Board found that the dancers provided services to a number of "pur- chasers" and, therefore, there was no "settled relationship" or relationship of eco- nomic dependence amongst the dancers and the hotels. 3 4 The hotels were not involved in either the selection or supervision of the dancers and only concerned 2006 CanLIIDocs 63 themselves with whether entertainment was being provided. 35 The (lancers were not under the direction or control of hotel management but, rather, came and went as they pleased, being subject only to a few house rules and the hotel's prescribed time and length of shows.' 36 The dancers were responsible for developing their own acts and costumes, which they then sold to buyers.'37 In fact, the dancers "regard[ed] themselves as freelance professional entertainers."' 8 Finally, the dancers were found to have control over their working conditions, given that they could choose when and where they worked.' 39 Altogether then, the circumstances suggested that these free- lance exotic dancers were independent contractors and, therefore, could not be organized pursuant to the Labour Relations Act.
2. Negative Stigma Similarly, the negative stigma attached to exotic dancing acts as a barrier to organizing. 14' Firstly, exotic dancers may not wish to reveal their profession to others.
132. Bruckert, Parent & Robitaille, supra note 32 at 46. 133. Algonquin Tavern, supra note 120. See also Itlise Sauvi v. M.N.R. 93-1219 (U), aff'd A-704-94 (Fed. C.A.), wherein the court found that an exotic dancer in a cabaret who was paid directly by customers performed her dances in the nature of a contract for services Idecision cited in Frichette v M. N.R., [19961 T.C.J. No. 770 (QL) at para. 71. 134. Algonquin Tavern, ibid. at para. 65. 135. Ibid. at para. 67. 136. Ibid. at para. 68. 137. Ibid. at para. 69. 138. Ibid. at para. 69. 139. Ibid. at para. 70. 140. See for example, Bruckert, supra note 18 at 100. 56 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 38:1 38:1
Organizing and strike activity, however, are likely to attract publicity and, thus, may deter dancers from organizing. 41 In addition, the impact of negative stigma on the dancers' self-esteem and image may affect their resolve to pursue and gain collective action. As Chun explains:
it takes self-esteem to create a collective voice because an individual's convictions must be strong enough to withstand opposition and pressure from an adverse management. Some dancers lack the basic belief that they deserve better working conditions, as con- flicting emotions of self-worth and self-loathing are common in the industry. 142
Finally, due to the stigma, dancers may receive little support from the public and the media in their attempts to unionize. Indeed, when the dancers at the Lusty Lady organized, The San Francisco Examiner described the movement as "the unprece- dented coupling of two historic San Francisco movements-labor and, er, the 1 43 pelvis." Further as Julia Query, dancer and organizer at the Lusty Lady, states, "the 2006 CanLIIDocs 63 44 media generally still sees [the dancers] as a joke."'
3. Temporary Nature of the Work Many dancers view exotic dancing as only a temporary job.145 To them, dancing is a means of paying for their education, working off a debt, or earning good money until they find another career.' 46 The attitude that a position is only temporary in nature creates a great barrier to organizing activity.147 As pointed out by Chun, "[wjorkers that intend to remain on a job for short periods of time are less motivated to make or fight for change."14 Furthermore, an "acceptance of unionism may represent a res- ignation to the sex industry, imbedding a sense of permanency and legitimacy in an 149 occupation intended to be temporary."'
141. Chun, supra note 16 at 244, 247-48. See also Machen, supra note 18 at 183. Note also the remarks of Julia Query, exotic dancer and organizer at the Lusty Lady wherein she states, "Islo many times a lot of workers can't join the picket lines because they can't be viewed. We got around that by having other people in our union who aren't sex workers coming to the picket line with us. And it helps to have people who are in the 'straight' world as allies because so often strippers feel alienated from it." Respect, supra note 103. One way to avoid identification is to attend these activities in disguise [Machen, ibid. at 1831. For example, in 1997, an exotic dancer at the Oakford Inn showed up to vote in a mask due to the publicity of the event [Chun at 2481. However, such disguises may simply serve to undermine the credibility and seriousness of the action [Machen, ibid. .at 1831 and should be avoided. 142. Chun, ibid. at 244-45. 143. Steinberg, supra note 94. 144. Respect, supra note 103. 145. See Lewis, supranote 16 at 60-61; Maticka-Tyndale et aL.,supra note 19 at 103; Chun, supra note 16 at 233, 245; Cooke, supra note 22 at 99; Latin American Coalition to End Violence Against Women and Children, supra note 11 at 57. 146. Lewis, ibid.; Maticka-Tyndale etal., supra note 19 at 103. 147. Bruckert, supra note 18 at 100. 148. Chun, supra note 16 at 233. See also Cooke, supra note 22 at 99 wherein she states "Iflor these women it is a waste of energy to organize for proper legal rights. The more immediate concerns of preserving rela- tionships and nurturing in your own back yard are considered higher priorities than the vague legal jungle of justice and rights." 149. Chun, supra note 16 at 245. CLOTHING EXOTIC DANCERS WITH 57 COLLECTIVE BARGAINING RIGHTS
4. Group Cohesion Dancers may also lack the group cohesion necessary for success in organizing and col- lective action. Firstly, there is much competition between exotic dancers 5 ° who must compete for access to the best clients and are spurred on by favouritism tactics on the part of club management.'' Further undermining group cohesion is the diversity amongst dancers.'52 Dancers may come from different backgrounds and may be of different ages, education and have different motivations for engaging in dancing.'53 As Cooke points out:
At one end of the social spectrum some strippers are graduates of universities and the ballet school. Some of the women have learning disabilities. You have women who, because of highly restrictive parents or religious upbringing, are making a statement by their choice of occupation. For some it's a very good dollar. At the other end of the spec- trum we have women who were born into alcoholic and/or drug-addicted families, who were pushed from pillar to post, and they are doing the most dignified thing that they
will ever do in their lives. They're in show business, they have status, they have a 2006 CanLIIDocs 63 career. 154
Given the group dynamics involved and the dancers' diversity, organizing could prove to be difficult.
5. Employer Tactics Another significant deterrent to collective action are employer tactics designed to subvert unionization. 55 Around the world, where exotic dancers have attempted to unionize, they have been met with grave resistance from management. For example, in San Diego, when the dancers at Pacer's unionized, "management retaliated by charging higher prices for employee purchases and eliminated an area where dancers took breaks.' u5 6 Although the union filed an unfair labour practice complaint, ulti- mately, the end result was that the union was decertified.' 57 As well, in response to the organizing efforts of the dancers at the Lusty Lady, the employer "hired a law firm infamous for busting unions," ran a "'vote no' propaganda campaign," distributed informational flyers, made threats, harassed union activists, and held mandatory group meetings about the "evils of unions."' Further, even after voting in favour of
150. For example, Bruckert, supra note 18 at 92, describes the relationship amongst dancers as being "shaped by an individualistic and competitive labour structure" and are "frequently antagonistic." See also Bruckert (ibid. at 100); McDonald, Moore &Timoshkina, supra note 22 at 56-57; Ross, supra note 49 at 236. 151. Bruckert, Parent & Robitaille, supra note 32 at 48 and see Cooke, supra note 22 at 98. 152. Chun, supra note 16 at 235. 153. ibid. at 232. 154. Cooke, supra note 22 at 98-99. 155. See e.g. Bruckert, supra note 18 at 100. 4 156. Chun, supra note 16 at 2 8. 157. ibid. 158. Jane, supra note 24. 58 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 38:1 38:1
the union, management continued its resistance throughout collective bargaining by insulting them, rejecting all proposals, dragging their feet and firing a dancer." 9 In a profession that already suffers from management exploitation and fears retaliation, such tactics may be particularly effective in deterring dancers from seeking and vot- ing for unionization. As the barriers illustrate, organizing in the exotic dancing industry is, by no means, an easy task. Organizers face a stigmatized and diverse group of temporary workers alongside hostile employers. This organizing environment, however, is not foreign to unions and may be overcome. For example, organizers can educate the public to reduce stigma, rally dancers around common issues to bring group cohe- sion and diligently fight against unfair labour practices. What may prove to be a more impenetrable barrier is the status of dancers as independent contractors. However, as explored below, this, too, may be overcome. 2006 CanLIIDocs 63 B. Options for Gaining Access to Collective Bargaining Rights Despite the barriers that exist, there are ways for exotic dancers, whether or not inde- pendent contractors, to access representation and collective bargaining rights. The appropriate course for seeking access, however, may depend on whether the dancer is a "house" dancer or a "freelance" dancer. "House" dancers, who work as employees or dependent contractors for one club, may be able to access representation and collec- tive bargaining like other workers through the Labour RelationsAct. On the other hand "freelance" dancers, who work as independent contractors for a number of strip clubs, may be afforded collective bargaining rights through legislation similar to that of the Status of the Artist Act. 160 As explored, below, these options could prove to be an effec- tive means of conferring collective bargaining rights on exotic dancers.
1. Access to Collective Bargainingfor"House"Dancers A house dancer who provides her services exclusively to one club may be able to estab- lish that she is either an employee or a dependent contractor and, therefore, entitled to pursue unionization and collective bargaining rights pursuant to the Labour Relations Act. Even if hired as an "independent contractor," it may be argued that she is an 61 "employee"' if the dancer is, in fact, a "dependent contractor," which is defined as:
a person, whether or not employed under a contract of employment, and whether or not furnishing tools, vehicles, equipment, machinery, material, or any other thing owned by the dependent contractor, who performs work or servicesfor another personfor compensation or reward on such terms and conditions that the dependent contractor is in a position of economic dependence upon, and under an obligation to perform dutiesfor, that person more closely resembling 162 the relationshipof an employee than that of an independent contractor;
159. ibid. See also Steinberg, supra note 94. 160. Status of the Artist Act, S.C. 1992, c. 33 [the Status Act]. 161. Note: definition of"employee" as contained in s. 1 of the Labour Relations Act, supra note 129, includes a "dependent contractor." 162. Labour RelationsAct, ibid.-see definition of "dependent contractor" provided in s. I [emphasis added]. CLOTHING EXOTIC DANCERS WITH 59 COLLECTIVE BARGAINING RIGHTS
Since house dancers usually "work for only one club in the city where they 63 live"' and are, therefore, in a position of economic dependency and subject to man- agement control and direction, it may be possible to establish that they meet the def- inition of"dependent contractor." Indeed, such was the finding in Algonquin Tavern. 164 Although the freelance (lancers in that case were held to be independent contractors, the "house dancers" were found to be economically dependent on the hotel and, therefore, were within the definition of "dependent contractors" if not "employees" within the meaning of the Labour Relations Act. 165 Similarly, the dancers at the Lusty Lady were able to unionize since their relationship with management resembled an employer-employee relationship. These "peep show" dancers received compensation directly from management, worked on a scheduled basis, were subject to the rules of 166 management and could be disciplined or fired. As these cases illustrate, in particular instances, it is possible to establish that the dancers in question are "employees" or "dependent contractors" and, therefore, 2006 CanLIIDocs 63 that they may unionize and bargain pursuant to the Labour Relations Act.
2. Access to Collective Bargainingfor"Freelance"Dancers Several American authors have taken the view that although dancers are hired as inde- pendent contractors, in reality, they are dependent contractors and should be able to access the legal protections afforded to employees.167 Clearly, where exotic dancers are dependent contractors, such an argument can be made. However, assuming dancers employed on a freelance basis are truly self-employed independent contrac- tors, as determined by the OLRB in Algonquin Tavern,'16 perhaps a better way of achieving collective bargaining rights for exotic dancers is through advocating for rights similar to those provided to artists under the Status Act. 69 Unlike labour legislation, which is premised on a single employer-employee relationship, the Status Act provides collective bargaining rights to self-employed artists working in the federal jurisdiction. In fact, it is the "first national legislation to 170 provide a framework for collective bargaining by independent contractors."
163. Boles & Garbin, supra note 39 at 315. 164. Algonquin Tavern,supra note 120. 165. ibid. at para 75. 166. Julia Query & John Montoya, "Uve Nude Girls Unite!;' VHS (Brooklyn, NewYork: First Run/Icarus Films, 2000). 167. See Fischer, supra note 49; Wilmet, supra note I at 493. 168. Algonquin Tavern, supra note 120. Although it may be argued that the OLRB could decide the question differ- ently today, in the author's opinion, such a result would be highly unlikely. Although Algonquin Tavern was decided in 1981, the decision would likely stand today. Since 1981, the exotic dancing industry has more firmly established dancers as freelancers or independent contractors. In fact, as explained by Bruckert, Parent & Robitaille, supra note 32 at 45-46, there has been a movement away from work on a "circuit" and since 1995, dancers have had more choice over hours of work and where they work, are paid directly by customers and not management and, generally, have more control over their working situations. 169. StatusAct, supra note 160. 170. MacPherson, supra note 130 at 356. 60 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 38:1 38:1
Pursuant to section 25(1) of the Status Act, an artists' association may apply for certi- 7 fication in respect of one or more sectors.' 1 Upon certification, the artists' associa- tion obtains exclusive authority to bargain on behalf of artists in the sector. 172 Applying such a legislative scheme to the exotic dancing industry would prove to be beneficial in a number of respects, as illustrated below.
(a) Sectoral Approach Freelance exotic dancers typically work for a number of establishments throughout the course of a year. The Status Act is particularly well-suited to this situation since it is tailored to independent contractors and takes a sectoral approach to collective bar- gaining. Further, as MacPherson states, "the artists' association becomes the one con- stant in the 'employment' relationship" and "many of the insured benefits normally provided by an employer can be provided by the union." 173 Thus, these workers could
potentially gain not only access to collective bargaining, but also access to life, health 2006 CanLIIDocs 63 17 4 and dental schemes as well as pension plans.
(b) Establishment of Minimum Standards Perhaps one of the greatest potential benefits to exotic dancers of such a legislative scheme is the establishment of minimum standards of work for those working in the exotic dancing sector. An association's objective under this legislation is to bargain for a "scale agreement," which is defined in the Status Act as "an agreement in writing between a producer and an artists' association respecting minimum terms and con- ditions for the provision of artists' services and other related matters."'75 In effect, what this means is that all dancers would be ensured of at least minimum standards for wages and working conditions, while at the same time retaining the flexibility to negotiate a contract with better terms. 76
(c) Legitimacy of the Profession Another compelling advantage of this scheme is that it recognizes artists as "profes- sionals" and "institutionalize[s] and legitimize[s] artists."'77 Notwithstanding the effec- tiveness of the legislation, simply providing recognition to exotic dancers would be a significant step towards reducing the negative stigma associated with this occupation.
171. Status Act, supra note 160 at s.25(I). 2 172. ibid. at s. 8(5)(a). For further information on how the Status of the Artist Act functions, see Cynthia J. Cranford et al., Self-Employed Workers Organize:Law, Policy, and Unions (Montreal: McGill-Queen's University Press, 2005) at 148-53. 173. MacPherson, supra note 130 at 386. 174. ibid. 175. Status Act, supra note 160 at s. 5. 176. ibid. at s. 33(4) of Status Act; See also MacPherson, supra note 130 at 368-69; Cranford et al., supra note 172 at 152-53. 177. Danielle Cliche, "Status of the Artist or of Arts Organizations? A Brief Discussion on the Canadian Status of the Artist Act" (1996) 21:2 Canadian Journal of Communication 197. CLOTHING EXOTIC DANCERS WITH 61 COLLECTIVE BARGAINING RIGHTS
(d) Maintenance of"Independent Contractor"Status Finally, it should be noted that such a legislative scheme may be far more beneficial to exotic dancers than would be the case if they were classified as dependent con- tractors and privy to the rights under the Labour Relations Act. Maintenance of their status as "freelance" dancers or independent contractors is of great importance to dancers who cite their independence as an advantage to working as an exotic dancer.' Indeed, dancers appreciate the "autonomy and flexible schedule" that danc- ing can provide. 7 9 In their study, Maticka-Tyndale et al. found that many of the women interviewed "chose to work freelance, despite the uncertainty of whether they would be able to dance at the time and club of their choice, since this gave them the freedom to choose when, how long, and where they worked.' 8 ° By providing these workers with collective bargaining rights while still main- taining their status as independent contractors, this legislative scheme most appro- priately addresses the needs of exotic dancers. 2006 CanLIIDocs 63
3. Application of the Status of the Artist Act to Exotic Dancers Despite the potential benefits of the Status Act to exotic dancers, it is clear that this group is not within the purview of the legislation. At present, the Status Act applies to 8 "artists"' ' including those independent contractors who "perform . . . in any manner, 8 in a musical, literary or dramatic work, or ... in a ... variety . . . show."' SThe inde- pendent contractor must also be: "paid for the display or presentation of [his/her] work before an audience and ... recognized to be an artist by other artists"; 183"in the 8 4 process of becoming an artist according to the practice of the artistic community"; or "a member of an artists' association."'85 Although exotic dancers certainly perform before an audience and are paid to do so, it is highly unlikely that they would be con- sidered to be "artists" by the "artistic community."8 6 Indeed, unlike ballet, exotic dancing does not have an established "infrastructure" with schools, professional organizations, critics and so on. 8 7
178. See Maticka-Tyndale et al., supra, note 19 at 100. See also Machen, supra note 18 at 181 where it is proposed that the degree of autonomy in the sex industry may be a factor keeping women in the profession. 179. Bruckert, Parent & Robitaille, supra note 32 at 51. 180. Maticka-Tyndale et al., supra note 19 at 100 and see similar comments in Bruckert, supra note 18 at 154. 181. Status Act, supra note 160 at s. S re: definition of"artist." 182. ibid. at s. 6(b)(ii). 183. ibid. at s. 18(b)(i). 184. ibid. at s. 18(b)(ii). 185. ibid. at s. 18(b)(iii). 186. Note, as well, that in the past, artists' associations have rejected representation of exotic dancers. For exam- ple, Cooke, supra note 22 at 95-96, reports that in response to licensing requirements for exotic dancers in Toronto, the Union of Stage Actors and Dancers and the Actors' Equity (which represents dancers pursuant to the Act-see Canadian Actors' Equity Association, 1996 CAPPRT 010, [19961 C.A.P.P.R.T.D. No. 7 (QL)) were not interested in representing the exotic dancers in their opposition to the license. Furthermore, Bruckert, supra note 18 at 100 states: "established performance-artist unions [have] historically not wel- comed 'disreputable' labour." 187. Hanna, supra note 16 at 50 quoting Fine. 62 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 38:1 38:1
As well, the Status Act, amongst other things, is directed at recognizing and conferring a status on artists that reflects their contribution to "developing and enhancing Canada's artistic and cultural life, and in sustaining Canada's quality of life."' 8 Given the negative views of the exotic dancing industry,"9 it is unlikely that exotic dancers would be regarded as making a cultural contribution or as improving "Canada's quality of life" and, therefore, would be outside the ambit of this legislation. However, although exotic dancers may not presently be recognized under the Status Act, this does not mean that the labour movement should not advocate for either an extension of the legislation or for similar legislation protecting exotic dancers. 19 0 Exotic dancers, like the artists recognized under the Status Act, are "artists" in their own respect. Exotic dancing has its origin in burlesque theatre and, to this day, can be considered an art form consisting of both dancing and acting.'9' Indeed, University of Maryland researcher Judith Hanna argues precisely that: that exotic dancing is an art form.'92 In her opinion, exotic dancing meets the requirements of 2006 CanLIIDocs 63 art: learned skill, creative imagination and communication.'9 3 Exotic dancers use movements "simulating lovemaking" and try to entice the audience through a type of 9 4 "nonverbal communication.' In essence, this form of dance, like others, serves to 9 "communicate human fantasy."' As such, it is a performing art. Although exotic dancing may be considered to be more "low brow" than such "high brow" dancing as ballet,' 96 it may, nevertheless, be regarded as a form of art and expression worthy of equal recognition. Indeed, as Bruckert and Dufresne point out, "beauty, body and objectification exist equally in the ballet theatre and in the strip club."197 As Hanna argues, the "components of an artistic performance" should not be
188. Status Act, supra note 160 s. 2(b). See also Canadian Heritage Corporate Review Branch "Evaluation of the Provisions and Operation of the Status of the Artist Act, Context for the legislation," online: Canadian Heritage
"downplayed" simply because one "disapprove[s] of the content."9 ' Furthermore, exotic dancers, like many other artists, are skilled performers. As pointed out by Bruckert, Parent & Robitaille, "[m]any women develop a strong stage presence and become skilled dancers; able not only to execute traditional stripper 'moves' but per- form (in very high heels) an original show that combines posing, ballet, jazz and aer- obic movements."' 99 Meanwhile, exotic dancers must smile, exude an attitude of sexuality and convey a particular persona.200 In short, exotic dancers are artists and deserve the same protections and col- lective bargaining rights as are afforded to other dancers and performers. While exot- ic dancers may not currently fall within the ambit of the Status of the Artist Act, the rights and interests of exotic dancers would be best served by either advocating for an extension of this legislation to exotic dancers or for similar legislation directed specifically at exotic dancers.
V. CONCLUSION 2006 CanLIIDocs 63
As the labour community contemplates whether the exotic dancing industry is an appropriate candidate for organization and collective bargaining rights, regard must be had to the significant benefits that would accrue to these workers. Not only would organization and collective bargaining improve the terms and conditions of work, it would also bring a sense of legitimacy to this otherwise stigmatized group of work- ers. Although there are numerous barriers which make organizing difficult, these bar- riers are not insurmountable. Indeed, there are effective ways for representing exotic dancers and providing them with collective bargaining rights. Whether it be through recognizing "house" dancers as "employees" under the protection of the Labour Relations Act or "freelance" dancers as "artists" under the Status of the Artist Act or sim- ilar legislation, collective bargaining rights may be conferred on exotic dancers. It is time that the labour community seeks to make these options a reality and takes action to clothe exotic dancers with collective bargaining rights.
198. Horwich, supra note 193. 199. Bruckert, Parent & Robitaille, supra note 32 at 49. 200. ibid.at 50. 2006 CanLIIDocs 63 Qui suis-je ? : Identite linguistique et exclusion des non-ayants droit par Particle 23 de la Charte
MICHAEL AQUILINO
Cc texte examine le droit i ]'instruction clans la The following examines the right to minority- langue de la minorit6 au Canada au sens de l'ar- language education in Canada, as provided by ticle 23 de la Charte canadienne des droits et Section 23 of the Canadian Charter of Rights and liberts. Si certains <
* Auxiliaire juridique, Cour d'appel f~drale (2006-2007). LL.B. Universit6 d'Ottawa (2006), programme franqais de common law. L'auteur tient remercier Me Mark Power et Me MarcTremblay pour leurs com- mentaires intuitifs et leur ceil critique tout au long de l'6laboration de cet article. 66 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 38:1 38:1
Table des mati res
69 1. DItFINIR LE CONCEPT D'IDENTITE 71 II. LA PROTECTION DES MINORITES ET LE LIBIRALISME 71 A. Will Kymlicka 71 B. Jeremy Waldron 73 C. Michael Walzer 73 Ill. APPLICATION DE LA QUESTION IDENTITAIRE AUX MINORITES NATIONALES CANADIENNES 75 IV. LARTICLE 23 : UN SURVOL 77 A. L'objet de Particle 23 77 B. Droits d~coulant de larticle 23
79 C. L'6valuation du nombre justificatif 2006 CanLIIDocs 63 80 D. L'article 23 : Source d'exclusion et de restriction de droits 82 V. VERS UNE VISION PLUS INCLUSIVE : LA SITUATION QUEBtICOISE ET L'ARRET SOLSKI 83 VI. EXAMEN DE LA LEGISLATION PROVINCIALE EN MATIIRE D'AYANTS DROIT 85 VII. L'ICHEC DE L'ARTICLE 23 87 VIII. LES ECOLES D'IMMERSION AU CANADA 89 IX. LES DROITS LINGUISTIQUES : DROITS INDIVIDUELS OU DROITS COLLECTIFS ? 90 X. LE DILEMME D'UNE CONCEPTION INDIVIDUALISTE DES DROITS LINGUISTIQUES 91 XI. SOLUTIONS POSSIBLES 92 XII. CONCLUSION