Author Archives: Ruthann Robson

First Class Jeans

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Are jeans appropriate attire for a first class cabin on an airline?  According to a complaint filed in federal court in California in Warren v. U.S. Airways, some airline employees think the answer depends upon the race of the body wearing the jeans.

JeansAccording to the complaints’ allegations, two African-American men boarding a plane in Denver on a flight to L.A. were told that they needed to change their clothes in order to use their first class tickets because “everyone in first class is required to wear slacks, button up shirts, and no baseball caps.”  The men, brothers, changed their clothes and boarded the plane.  Other men in first class, however, did not conform to the announced dress code.  Indeed, according to the allegations, a pair of men – – – one white and one Filipino – – – were both wearing jeans and hooded sweatshirts.  These men stated that they were never informed there was a dress code for first class cabin.

The airline, as a private rather than governmental entity, is not subject to constitutional constraints.  However,  the airline is subject to several federal statutes that prohibit discrimination on the basis of race, including in public accommodations, by recipients of federal funding, and in the impairment of contracts.  The complaint also includes a state law discrimination claim as well as state law tort claims for infliction of emotional distress.

If the plaintiffs can prove their allegations, the airline has cause to worry that its employees have engaged in racial discrimination.     And if the plaintiffs can get to a jury, it would be unlikely anyone on that jury who has been a customer of an airline in the past several year will find a first class cabin “dress code” credible. 

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Hemlines in Uganda

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According to an article in the Mail & Guardian, the Ugandan government is again considering criminalizing women’s attire “above the knee.”   Certainly, hemlines have fluctuated, as show in the graph below (via).

 

800px-Hemline_(skirt_height)_overview_chart_1805-2005.svg

 

 

 

But the difference between fashion and state mandated attire is a crucial one.  Uganda’s effort is part of an anti-pornography bill that would also censor images in the media and on the internet.

 

 

Should You Care About A Senator’s Hairstyle?

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Perhaps not.

But Mother Jones has a terrific “fluff piece” by Dave Gilson entitled The Greatest Senatorial Hair Cuts of All Time with a punned subtitle ‘do process.

Calhoun_400

Most of the hairstyles are also punningly titled, adding to the fun of the 8 featured senators.  Although some, such as John Calhoun (pictured above) need no title, and others rise and fall by their caption.

A companion piece, by Asawin Suebsaeng on Senate Hair Care Services, “the official barbershop and salon of the world’s greatest deliberative body,” is also a terrific read that puts laws, codes, and policies about hair into a different perspective.

Supreme Court to Decide the Meaning of “Changing Clothes”

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Certainly the United States Supreme Court’s current docket has some controversial issues – – – such as affirmative action, voting rights, campaign finance, and same-sex marriage – – – but some of the questions it decides to hear are decidedly less high profile, including a question of statutory construction on the meaning of changing clothes, and indeed, the meaning of clothes.

The Court has granted certiorari in Sandifer v. United States Steel to decide

What constitutes “changing clothes” within the meaning of section 203(o) of the Fair Labor Standards Act?

The section of the Fair Labor Standards Act, FLSA, at issue is a definitional one, defining “hours worked” as excludinwork clothesg

any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

The Seventh Circuit – – – in an opinion by the controversial and colorful Judge Richard Posner – – – found in favor of U.S. Steel that donning and doffing the safety gear was not necessarily changing clothes.  Not for the first time, Judge Posner decided to include an image in his opinion (reproduced at right).  Judge Posner explained:

It’s true that not everything a person wears is clothing. We say that a person “wears” glasses, or a watch, or his heart on his sleeve, but this just shows that “wear” is a word of many meanings. Almost any English speaker would say that the model in our photo is wearing work clothes.

Posner also situates the case in labor relations and the steel industry:

From a worker’s standpoint any time spent on the factory grounds is time “at work” in the sense of time away from home or some other place where he might prefer to be if he weren’t at work. But it is not time during which he is making steel, and so it is not time for which the company will willingly pay. If the workers have a legal right to be paid for that time, the company will be less willing to pay them a high wage for the time during which they are making steel; it will push hard to reduce the hourly wage so that its overall labor costs do not rise. The steel industry is inter- national and highly competitive, and unions temper their wage demands to avoid killing the goose that lays the golden eggs. They don’t want the American steel industry to go where so much American manufacturing has gone in recent years—abroad. The plaintiffs are adverse to their union, to the interests of other steelworkers, and to their own long-term interests.

The constitutional issues surface only in the last portion of Judge Posner’s opinion for the Seventh Circuit.  The Department of Labor, the federal agency charged with implementing FLSA, has altered its administrative determinations regarding the meaning of “changing clothes.”  As Posner writes, this meaning has changed with various Presidential Administrations, explaining in his inimitable prose that “Such oscillation is a normal phenomenon of American politics. Democrats are friendlier to unions than Republicans are . . . .”  He adds that “Naturally the Department of Labor does not acknowledge that its motive in switching sides was political; that would be a crass admission. . .”

Moreover, even as the Supreme Court is set to tell us what “changing clothes” means and within that pronouncement, to define “clothes,” these definitions will occur only within the context of a statute.  Thus, Congress retains ultimate power here; it could always amendment FLSA to include specific (and even contrary) definitions.

For St. Patrick’s Day: Appropriate Attire Please

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665px-St._Patrick_himself_in_Dublin,_OhioSome green is beyond the pale for the Rockland County, New York legislature.

In keeping with previous practices, the body has expressed its displeasure at attire “including hats, shirts and other materials which promote ridicule and seek to degrade any ethnic culture should not be permitted to be sold in a public forum especially where children may be exposed and have access to said materials.”   Presumably, this attire goes beyond bearing slogans such as “Kiss me I’m Irish” and mentioning of an occasional pint of Guinness; there is a specific reference to the “most offensive, derogatory materials now offered for sale at Spencer’s at the Palisades Center, West Nyack, New York, which specifically target members of Rockland’s Irish-American community.”
(Some of Spencer’s St. Patrick’s Day attire is available here.)

Importantly, the County Legislature’s act is a “Resolution.”  Certainly, any enforcement attempts would run afoul of the First Amendment.

The full text of the Resolution is below the jump, page 2.
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Pages: 1 2

Stealth Wear: Defeating Drone Surveillance by Attire

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With continuing controversies about drones, the appearance of apparel that would combat the surveillance capabilities – – – if not the lethal ones – – – of drones is perhaps an obvious development.

Adam Harvey’s stealth wear continues to “explore the aesthetics of privacy and the potential for fashion to challenge authoritarian surveillance.”

hoodie

For example, the stealth wear hoodie (pictured above ) is made of “metallized fabric that protects against thermal imaging surveillance, a technology used widely by UAVs/drones” and is available for purchase.   Other stealth wear garments are inspired by the burqa and hijab.

An article in Scientific American declares that the “the science behind the fashion is quite sound” and goes on to explain the process of metalizing fabric.

Utah Bill on Gender (Non)Conformity in Dress as Employment Discrimination

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Utah’s SB 0262 (2013) would amend the Utah Antidiscrimination Act and the Utah Fair Housing Act to include prohibiting discrimination on the basis of sexual orientation and gender identity.

tapestry women and menThe bill specifically allows the maintenance of gender specific dress and grooming codes by employers, but would allow some flexibility for individuals to choose their gender appearance:

7)     (a) This chapter may not be interpreted to prohibit an employer from requiring an employee, during the employee’s hours at work, to adhere to reasonable dress or grooming standards not prohibited by other provisions of federal, state, or local law, if the employer permits any employee who has undergone gender transition before the time of application for employment, and any employee who notifies the employer that the employee has undergone or is undergoing gender transition after the time of application for employment, to adhere to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning.

          (b) For the purposes of this Subsection (7), if an employer has reason to believe that an applicant’s or employee’s gender identity is not sincerely held, the employer may require the applicant or employee to provide evidence of that gender identity. A person may prove the person’s gender identity by providing evidence, including medical history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity, or any other evidence that the gender identity is sincerely held or not being asserted for an improper purpose.

The bill’s passage would certainly be progress, but even more progress would be a prohibition of gender-based dress and grooming codes as within the definition of discrimination.

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Think you can wear a jacket with political words into the United States Supreme Court building?

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Think again.

Here’s the jacket:

jacket

Here’s the story:

This jacket was worn a little over a year ago and prompted an arrest although not a criminal charge.  The jacket wearer has since sued for a violation of his First Amendment rights, but the the United States Attorney’s office has moved to dismiss, including the argument that the fact that the jacket has a “message” is essentially proof that it can be constitutionally banned from the Supreme Court building.   I discuss this odd constitutional state of affairs over at the Constitutional Law Professors Blog here.