The Law of Intimate Work

• Publication year: 2021

THE LAW OF INTIMATE WORK

Naomi Schoenbaum(fn*)

Abstract: This Article introduces the concept of intimate work-intimate services provided by paid workers to a range of consumers-and seeks to unify its treatment in law. The concept explains multiple exceptions to work law that have previously been viewed as random and even contradictory. From the daycare worker to the divorce lawyer, the nurse to the hairstylist, intimate work introduces an intimate party-the consumer-into the arm's-length employer-employee dyad on which work law is premised. This disruption leads to limited enforcement of non-compete agreements, the waiver or imposition of fiduciary duties, and exceptions to wage-and-hour and antidiscrimination law, among other consequences.

The current ad hoc approach to intimate work does harm. Law's separate regulation of intimacy and work fails to recognize the special value and vulnerability generated when the two overlap. At times, law protects only a narrow subset of intimate work, as the existing approach to non-compete agreements reveals. At other times, law gets intimate work backward, taking away protection at precisely the moment more protection is needed, as is the case with antidiscrimination law. The resulting law permits employers to promote discrimination in the formation of intimate work bonds, to discipline intimate workers who act to benefit consumers, to expose intimate workers and consumers to the abuse of personal information, and to break valuable intimate work bonds with impunity. These harms are only magnified with the rise of intimate work.

This Article proposes a unified law of intimate work sensitive to the value and vulnerability it generates. This law has implications for a wide swath of doctrines, and for gender equality, as women are especially harmed by the failure to value intimate work. Much of this law can be achieved by analogical adaptation of time-proven doctrines. For example, law should no longer ignore lost intimate work bonds as an injury when evaluating non-compete agreements or crafting remedies for termination. In other situations, new approaches are needed, such as limits on employers' ability to cultivate discriminatory consumer preferences. In the end, this new law of intimate work is designed to protect intimate workers and consumers while valuing relationships that are central to everyday life.

INTRODUCTION .............................................................................. 1169

I. INTIMATE WORK ..................................................................... 1174

A. Definition and Typology .................................................... 1175

B. Common Consequences ..................................................... 1179

II. THE LAW OF INTIMATE WORK (AND WHAT IS MISSING) .................................................................................... 1185

A. Legal Categories of Intimacy and Work ............................ 1185

B. Discrimination .................................................................... 1187

1. Title VII and the BFOQ ............................................ 1190

2. Public Accommodations Law ................................... 1196

C. Sacrifice .............................................................................. 1198

1. Wage-and-Hour Law ................................................ 1200

2. Retaliation ................................................................. 1202

D. Exposure ............................................................................. 1205

1. Fiduciary Duties ....................................................... 1206

2. Harassment ............................................................... 1208

3. Workers' Compensation ........................................... 1209

E. Lost Investments ................................................................ 1209

1. Non-Compete Agreements ....................................... 1211

2. Duty of Loyalty ........................................................ 1214

3. Trade Secrets ............................................................ 1215

4. Termination and Transfer ......................................... 1216

III. THEORIZING A NEW LAW OF INTIMATE WORK .............. 1218

A. Why Law ............................................................................ 1219

1. The Benefits of Law ................................................. 1219

2. Objections and Responses ........................................ 1223

3. The Inadequacy of Private Ordering ........................ 1225

a. Exit and Voice .................................................... 1225

b. Market Failures .................................................. 1226

B. What Law ........................................................................... 1228

1. Functional Recognition ............................................ 1228

a. Expanding Recognition ...................................... 1228

b. Initial Recognition ............................................. 1231

c. Reversing Recognition ....................................... 1233

d. Principles ............................................................ 1234

2. Additional Recognition ............................................ 1236

a. Discrimination .................................................... 1237

b. Sacrifice ............................................................. 1241

c. Exposure ............................................................ 1241

d. Lost Investments ................................................ 1243

CONCLUSION .................................................................................. 1243

INTRODUCTION

Consider the following cases. A hospital seeking to hire a labor and delivery nurse may consider only women for the position, although such discrimination would be unlawful in hiring almost all other workers.(fn1) A home health aide hired to provide companionship to an elderly client need not be paid minimum wage or overtime, although an employer would violate wage-and-hour law by failing to pay almost any other worker.(fn2) A lawyer or therapist owes fiduciary obligations to her clients, although most other workers are held only to arm's-length contractual obligations to their clients.(fn3) A non-compete agreement restricting a doctor from ongoing relationships with patients is unenforceable, although a court would not hesitate to enforce the same agreement as applied to an accountant, a hairstylist, or most any other worker.(fn4)

This Article explains and unifies these exceptional cases by introducing the concept of intimate work. Intimate work involves the paid provision of services entailing intimacy to a range of consumers. The examples above reveal that law often singles out intimate work for special treatment, creating a de facto law of intimate work. To appreciate the breadth of this phenomenon, one need look no further than two of the most watched Supreme Court cases last term. Burwell v. Hobby Lobby Stores, Inc.'s(fn5) recognition of employers' religious freedom may lead to special treatment for intimate work under antidiscrimination law, permitting wedding vendors, for example, to refuse service to gay couples.(fn6) And Harris v. Quinn's(fn7) holding that home healthcare providers are the lone public employees exempt from union dues sets intimate work apart under labor law.(fn8) Despite the special place of intimate work throughout a range of laws, no scholar has yet synthesized the law of intimate work or assessed its effectiveness.(fn9)

By developing the category of intimate work as a descriptive matter, this Article brings the unique features of intimate work, and its current regulation, into full view. Normatively, the Article reveals the incoherence of the existing law of intimate work. Across a wide swath of doctrines-from antidiscrimination law, to wage-and-hour law, to retaliation protections, to fiduciary law, to non-compete agreements, to the misappropriation of trade secrets, to remedies for unlawful termination-law has not done enough to recognize the unique circumstances of intimate work. This Article argues for a new unified field of intimate work law to protect the circumstances under which intimate workers labor and the public as consumers receive critical services.

Bringing together intimacy and work joins two spheres that law tends to consider separate.(fn10) Yet, in everyday life, intimacy and work are anything but distinct. Workers-doctors, nurses, divorce lawyers, hairstylists, and bartenders-have long engaged in the intimate aspects of life. More recently, intimate work is on the rise, as workers have come to provide services that were once the hallmark of family life.(fn11) Dating counselors guide us in how to pick the right partners; wedding planners instruct us in how to create memories; lactation consultants teach us how to breastfeed; and funeral directors arrange our deaths.(fn12) It is now possible to rent a worker to serve as a mom, husband, grandma, grandpa, or friend.(fn13)

While the varieties of intimate work differ, they are united by the presence of a consumer seeking and receiving intimacy. The intimacy consumer disrupts the arm's-length employer-employee dyad that law, in contrast to social science, assumes is at the heart of all employment...