"Sexual harassment" in the nature of the business

By: Robin Shea

June 28, 2019

This claim against the "Museum of Sex" should fail.

Have you ever heard of the Museum of Sex in New York City? It's a real thing.

Here is their website (NSFW). (I was blocked when I tried to access it at work, and had to access it from my personal computer.) Here is a "cleaner" article from the Daily Mail.

According to its website, the Museum of Sex is exactly what you would expect an institution with that name to be. Among other things, it has a "bouncy castle of breasts." (That's the museum's name for the room, not mine.) This appears to be like the ball pits they have for the kids at places like Chuck E. Cheese, only the "balls" are a lot bigger and look like breasts.  

Katherine McMahon took a $13.25-an-hour job as a tour guide at the Museum. 

Ms. McMahon, 21, lasted less than a year, and now she is suing the Museum of Sex for hostile work environment sexual harassment and disability discrimination under the New York City Human Rights Law. (I'm not commenting on her disability claim.)

She claims in the lawsuit that security for the employees was inadequate, but the only specific incident of sexual harassment she alleges is that a couple visiting the museum asked whether they could have sex in the "bouncy castle of breasts." When she said no, they asked her to spank them. She doesn't allege that anyone followed through, or even that there was any further discussion after she refused.

It's possible that there was more harassment that she hasn't specifically alleged in her lawsuit. But if it's more like this, I don't think her claim will go anywhere. (Or at least it wouldn't under Title VII. The NYCHRL is more plaintiff-friendly than Title VII.)

This type of query from a museum visitor seems to be completely within the nature of the business of a "museum of sex." It would be like an editor at Playboy claiming sexual harassment when asked to view the layout of the next issue. Or an exotic dancer claiming sexual harassment when the audience cheered and tried to put dollar bills in her thong. Or a porn actress claiming sexual harassment when told to undress for her big scene.

Years ago, I heard that a company who manufactured women's undergarments got a complaint of sexual harassment from an employee. The alleged harassment? That the workplace displayed advertisements with models wearing the company's bras. (The company did not take down the ads.)

Yes, an employee in the sex or intimate products industry can have a valid claim for sexual harassment, but the harassment should have to be outside the nature of the business. If the exotic dancer's boss pressured her to have an unwanted sexual relationship, that would still be actionable sexual harassment because that wasn't "part of the package" when she took the job. But if he tells her to take off her bathrobe because it's time for her show, that is not sexual harassment. Or shouldn't be.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.