Portland, OR. — The Ninth Circuit Court of Appeals has revived a Portland exotic dancer’s retaliation lawsuit, ruling that the district court applied the wrong legal standard when it dismissed the claim. The three-judge panel held that Zoe Hollis, who performed at the strip club Sassy’s, did not need to be an employee of a second club—Dante’s—at the time of the alleged retaliation in order to bring a claim under the Fair Labor Standards Act (FLSA). The court reversed the district court’s summary judgment ruling and sent the case back for further proceedings.
Hollis originally sued Sassy’s and its partners for misclassifying dancers as independent contractors and violating federal wage laws. After the lawsuit was filed, manager and co-owner Frank Faillace, who also helps run Dante’s, canceled Hollis’s scheduled performance at Dante’s and barred them from future work there. In an email, Faillace said allowing Hollis to perform would increase the risk of another lawsuit. Hollis amended the complaint to add a retaliation claim.
The district court dismissed the retaliation claim, ruling that Hollis needed to be an employee of Dante’s at the time of the cancellation. The Ninth Circuit rejected that reasoning, holding that the FLSA covers retaliation by “any person acting directly or indirectly in the interest of an employer,” and does not require the retaliator to be the plaintiff’s current employer. The underlying employment relationship, the court emphasized, is the one with Sassy’s, the employer Hollis sued for wage violations.
The appellate judges also ruled that Hollis’s misclassification claims being time-barred does not prevent them from establishing employee status, which the district court must now evaluate under the “economic realities” test.
On the retaliation question, the panel concluded that a reasonable fact-finder could determine that canceling the scheduled performance and cutting off future work was harmful enough to dissuade a worker from asserting their rights, meeting the legal standard for retaliation. The court rejected the defendants’ argument that the cancellation was a legitimate business decision to avoid potential liability, ruling that allowing such a defense would undermine the FLSA’s protections.
Along with reinstating the federal retaliation claim, the Ninth Circuit also reinstated Hollis’s related state-law claims. The case now returns to the district court for further proceedings consistent with the ruling.
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