In Frehoo, Inc. v. Bureau of Labor and Industries, 510 P.3d 888, 901, 319 Or. App. 548 (Or. App. May 18, 2022), the Court of Appeals of Oregon held that the evidence supported the conclusion by Oregon’s Bureau of Labor and Industries (BOLI) that an adult-entertainment establishment subjected an underage dancer to hostile work environment sexual harassment.
As to the specific circumstances under which the alleged harassment occurred, the court explained:
The standards of sexual harassment in the workplace do not change when, as in the context of this case, the work itself is of a sexual nature. Exotic dancers do not lack protection against sexual harassment in the workplace. See Clark v. Top Shelf Entm’t, LLC, 316CV00144MOCDSC, 2017 WL 971051 at *4 (W.D.N.C. Mar. 13, 2017) (holding that exotic dancers “have protections at the workplace, including protections from sexual harassment (especially by their employers), sexual assault, and other sexual misconduct”); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998) (“[The] inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.”).
As to the merits, the court agreed with the BOLI’s finding that, e.g., “a reasonable young woman of that age [fifteen] would have found the performance of nude dancing for older men to be sufficiently severe to create a hostile, intimidating and offensive working environment” and that there was sufficient evidence to support the conclusion that the petitioner knew or should have known that it was employing underage dancers and that the alleged 15 year-old victim was herself underage.
Specifically, the court noted that the corporate petitioner “had just recently, within the past year, not only employed a 13-year-old girl, but employed her trafficker” and “knew it had a serious problem of child sex exploitation, perpetrated by its own employees, and that its current controls were inadequate” yet “failed to make any changes—including failing to adopt identification machines, or even failing to enforce its own policies.”
The court also, however, held that BOLI applied the incorrect standard for holding the petitioner’s owners liable under an “aiding and abetting” theory, since it deviated from the statutory text when assessing their liability.