Condom Law: NSFW

by on December 8, 2009 at 12:14 pm in Economics, Education, Film | Permalink

The AIDS Healthcare Foundation is lobbying California to require the use of condoms in porn movies. Their argument is that this is an employee safety issue–like requiring workers to wear hard hats–and so should fall under the Cal/OSHA laws.

But in an op-ed at Forbes.com Alex Padilla points out that to fall under the law will require classifying porn stars as employees rather than as performers and that has surprising consequences. 

…the adult film industry would have to make every performer an employee to satisfy the California's Division of Occupational Safety and Health, better known as Cal/OSHA, laws. This would be detrimental: California's anti-discrimination laws prohibit requiring an HIV test as a condition of employment; therefore the adult film industry's current testing process, in which every performer is tested for HIV monthly, would be illegal. Nor would adult film producers be allowed to "discriminate" by refusing employment to HIV-positive performers. As a result, untested and HIV-positive performers would be able to work in the industry, raising the risks of HIV outbreaks–particularly since condom breakage or slippage can occur.

My suspicion is that the AIDS lobbyists are not really so concerned with the performers but they do want to increase condom use by the general public and they think seeing more condoms in porn movies will help with that goal.  A legitimate goal perhaps, but more likely the industry will move to Nevada or will further go online amateur.

Hat tip to Ed Lopez at Division of Labor.

1 tingbudong December 8, 2009 at 12:47 pm

Is it legally still discrimination in the US if the grounds for discrimination have direct bearing on the work they will be doing, and more specifically will present a very real risk to coworkers? Is a hospital forced to hire an otherwise qualified nurse or doctor who is HIV positive?

2 david December 8, 2009 at 1:10 pm

@Captain Blah

You are not the first to postulate such a mechanism; there was the Hot Waitress Index bounced around the Internet a few months back.

3 Captain Blah December 8, 2009 at 1:24 pm

David: Dang it! There goes my best idea for a Nobel prize.

4 Anonymous Frustrated Lawyer December 8, 2009 at 1:36 pm

lol @ “they think seeing more condoms in porn movies will help with that goal”

They must not understand who that the median viewer in that genre.

5 Jacob T. Levy December 8, 2009 at 2:18 pm

Clever but almost certainly wrong. Anti-discrimination law has a very clear exception for “bona fide occupational qualifications.” This document about federal ADA protections for those with HIV says that categorical exclusions of those with HIV will be inappropriate precisely because workplaces don’t involve sexual contact:

‘Transmission of HIV will rarely be a legitimate “direct threat”
issue. It is medically established that HIV can only be
transmitted by sexual contact with an infected individual,
exposure to infected blood or blood products, or perinatally from
an infected mother to infant during pregnancy, birth, or breast
feeding. HIV cannot be transmitted by casual contact. Thus,
there is little possibility that HIV could ever be transmitted in
the workplace.’

But if a direct threat *is* demonstrable– and here it clearly would be–
“The ADA permits employers to establish qualification standards that will
exclude individuals who pose a direct threat — i.e., a
significant risk of substantial harm — to the health or safety
of the individual or of others” .

Calfornia law might differ, but I doubt it differs so much as to take away direct-threat protections for coworkers.

6 Anonymoose December 8, 2009 at 2:35 pm

There is almost no possible way that this author even bothered to look at the statute before writing this article. Given how utterly wrong he is about how anti-discrimination law works, I’m going to guess that porn performers are probably already regulated by CALOSHA as well. He clearly didn’t bother to do even the slightest bit of research before penning this piece of massive fail. Dear Forbes, can I have this shitheels job? Because I can promise I’d at least google the damned statute before submitting this tripe for publication. Seriously. Epic. Fail.

The relevant Cali statute is the Fair Employment and Housing Act (FEHA) – Sec 12900 to Sec 12996 of the Cali code.

Cali Govn’t Code Sec 12940(a)(2) “Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employee’s medical condition, is unable to perform his or her essential duties, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations.”

Cali Govn’t Code Sec 12940(e)(3) “an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job-related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.”

7 agnostic December 8, 2009 at 2:44 pm

Hmmm, wonder if there’s a Peltzman effect in requiring porn people to wear condoms — does it lead to riskier acts because they feel safer? Certainly seems that way. The stuff from the ’70s and ’80s looks pretty vanilla today.

After the AIDS scare of the ’80s and early ’90s, there was heightened concern about safety measures. Right after that, you started seeing a lot more bizarre and over-the-top content. Hey, don’t worry — we’ve got it covered.

8 Anonymoose December 8, 2009 at 3:00 pm

Ah, this explains quite a bit about the total lack of factual underpinnings to the piece: “Alexandre Padilla is assistant professor of economics at the Metropolitan State College of Denver and a research fellow at Reason.”

Why use Facts when you can just use Reason?

9 Dan Ryan December 8, 2009 at 3:42 pm

hard hat? I never heard them called that before..:)

10 DR December 8, 2009 at 5:24 pm

Porn doesn’t use condoms because the high frequency of use would cause abrasions called “rubber rash” and make STD transmission more likely.

11 Neal December 8, 2009 at 10:16 pm

Isn’t this more of a worker satisfaction issue than a worker safety issue?

12 Anonymoose December 9, 2009 at 12:54 am

This really bothers me. Did you even bother to read the advisory regulations from the EEOC and it’s Cali counterpart on the laws that they’re tasked with implementing? It’s shoddy, and that you don’t realize what bad form it is to act like an authority on a topic you don’t have the slightest understand of makes it even worse. It would be akin to me publishing an op-ed critique of Acemoglu after just reading one of his papers and without any other research on the topic. If you had approached a professor or practitioner of employment law before writing this up they could have saved you the embarrassment by actually explaining the law to you, but I guess then you’d have to find some other, less clever, way to point out how government intervention can be an unintentionally bad thing.

13 erotik shop December 9, 2009 at 6:10 am

thanks for all

14 MikeM December 9, 2009 at 3:20 pm

People can be whatever they want on the internet Anonymoose, I’m more inclined to believe the even keeled Alex who has his actual name and reputation on the line rather than yourself who called a perfectly respectable poster “a shitheel”. Keep in mind that Padilla actually has his name out there rather than some trite take on “Anonymous”.

I think the issue is, and you haven’t even addressed it, is does an HIV positive performer wearing a condom present a significant risk to the performer opposite him? Is the same true for women? I’m not a lawyer, but you’ve done nothing to address the issue for the general public reading this blog other than beat your shoe on the table and declare “I’m a lawyer, and Padilla’s an ass wipe”.

15 nelsonal December 9, 2009 at 7:23 pm

Anonymoose
So is all the work to encourage condom use a waste of time? Condoms either work or don’t, you can’t have it both ways.

16 Nathanael December 14, 2009 at 7:15 pm

How on earth are the performers *not* counted as employees? Are movie actors in Hollywood not employees either?!?

17 4car March 4, 2010 at 12:33 pm

I find that highly unlikely, but at least more credible than the linked article.

18 Contact center March 4, 2010 at 1:35 pm

In a move that led one city councilor to proclaim a “constitutional crisis” in Boston, Mayor Flynn and the City Council yesterday were admitted as parties on opposite sides of a lawsuit over a controversial city ordinance requiring large bars and restaurants to allow condom manufacturers to place vending machines on their premises.

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