Author Archives: Ruthann Robson

Blonde Highlights & Black Woman = Termination from Hooters

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As reported by a Baltimore local CBS affiliate, Farryn Johnson was terminated from her position as a server with Hooters restaurant because black women can’t have blonde hair.  Here’s the video:

http://youtu.be/13MOmIamrjU

 

Private employers often have wide latitude to “brand” their employees, but should hair color – – – or styles – – – vary by race?  

This certainly isn’t the first time this issue has been raised and it’s treated in the “dressing professionally” chapter of Dressing Constitutionally.  It has vexed a number of courts, who would be less confused if the judges read and understood the scholarship of   several African-American legal scholars who have provided trenchant analysis of the issue:

First of all, there’s Paulette M. Caldwell’s terrific and groundbreaking article,  A Hair Piece: Perspectives on the Intersection of Race and Gender published in Duke Law Journal in 1991.  And there’s  Angela Onwuachi-Willig, ‘Another Hair Piece: Exploring New Strands of Analysis Under Title VII,’  published two decades later.  And there’s D. Wendy Greene’s  spot-on article, Black Women Can’t Have Blonde Hair . . . In The Workplace, published in 2011 in  Journal Gender Race & Justice. 

These scholars provide the nuances of employment discrimination doctrine under Title VII as well as a cultural discussions of hair.

But really, the answer should be rather simple: it’s race discrimination for an employer to terminate a black woman for hair that would be acceptable on the head of a white woman. 

Of course, there is an even simpler answer to a different question: should an employer be mandating the color of any employee’s hair?

[h/t Atiba Ellis]

Listen to Margaret Chin on “Sewing Women”

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Heidi Knoblauch interviews CUNY Professor Margaret Chin in this week’s episode of JustPublics@365, about Chin’s marvelous book, Sewing Women: Immigrants and the New York City Garment Industry. 

Chin discusses an important piece of “dressing economically” and serves as a reminder that “Made in the USA” does not necessarily mean made under fair working conditions.

https://soundcloud.com/justpublics-365/margaret-m-chin

Woman Sues NYPD for “Topless” Arrest

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 In a complaint filed in state court earlier this month, Krigsman v. City of New York, Jessica Krigsman seeks money damages for her unconstitutional arrest for not wearing a shirt in a public park in Brooklyn.  The complaint alleges that when the police officers approached Ms. Krigsman on the park bench and  told her to put on a shirt, she

“politely told the police officers that in 1992, in People v. Santorelli, 80 N.Y. 2d 875 (1992), the New York Court of Appeals held that it is legal for a woman to be topless in any public place in New York State where it is legal for a man to be topless.”

450px-Athena_mit_Spiegelbild_der_Medusa_(Museumsberg,_Flensburg)

Statute of Athena

Apparently, the police officers did not credit Ms. Krigsman’s legal expertise, because they arrested her and took her to the precinct where she was held for approximately five hours and issued a summons for “Obstruction of a Sitting Area,” a charge that was dismissed when she appeared in court in October.

Certainly, Ms. Krigman’s lawsuit clears one of the hurdles that can make an award of damages for a constitutional violation difficult: the requirement that the law at the time of the incident be clearly settled.

As discussed in chapter 2 of Dressing Constitutionally, Santorelli involved activist Nikki Craft and other feminists, who had staged an action protesting topless laws as applied to women in a Rochester park; they were arrested for public nudity based upon exposure of their breasts.  A trial judge rejected their equal protection challenge, while dismissing the charges against them based upon a First Amendment analysis of their publicized protest in the park, but an appellate court reversed.  When the case reached New York’s highest court, the court’s succinct memorandum opinion neatly held that the statute was not intended to apply to the type of situation before it, but only “topless waitresses.”

It was concurring Judge Vito Titone who wrote the opinion that is best remembered.  He essentially accused his colleagues of historical inaccuracy, arguing that the “topless waitress” statute was a precursor statute and that the new provision under which Craft and others were convicted  “was aimed at filling a gap”  to clearly proscribe “nude sunbathing by ordinary citizens” and “either men or women appearing bottomless in public places”  Joined by one other judge, Titone’s opinion argued that the court should have taken the equal protection issue more seriously and suggested that any recognition of a governmental interest of protecting public sensibilities that are based on a gendered distinction is itself a constitutional problem.  For Titone, the “underlying legislative assumption that the sight of a female’s uncovered breast in a public place is offensive to the average person in a way that the sight of a male’s uncovered breast is not” is an assumption that replicated gender bias rather than confronting and eradicating sex inequality.  Titone’s concurring opinion stands as one of the most supportive judicial statements of the unconstitutionality of legally imposed gender differentials in required clothing.

[image via]

Banksy’s Uniforms and Masks

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In his continuing October “residency on the streets of New York,” Banksy’s newest installation may speak to individuality, art, and art markets – – – as the accompanying audio attests – – – but it also features uniforms and masks in mirrored images.  Of course, both uniforms and masks implicate a host of “dressing constitutionally” issues.

Banksy’s website also contains close-up images of the two pieces.

Headgear Hysteria

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Here’s an Op-Ed from the National Law Journal:

High Fashion or Religious Fervor? Headwear Laws Fraught With Trouble

The distinction between faith-based garb and trendy styles isn’t always clear.

by Ruthann Robson
The National Law Journal
October 14, 2013

459px-Kate_Duchess_Cambridge_2012Passion about head coverings is not limited to intense interest in Kate Middleton’s latest hat or ­fascinator.

Retailer Abercrombie & Fitch, well known for its “look policies,” lost a court battle last month to prohibit its employees from wearing headscarves but won a different federal appeal earlier this month because a 17-year-old employee did not make explicit the religious motives for her scarf. And earlier this month, Turkey made news by further lifting its long-standing ban on headscarves, even while maintaining the prohibition for women judges, prosecutors and members of the military.

Police officers in the Bronx, N.Y., allegedly removed by force the headscarves of teenage girls playing in a park in late August. And last month in Mississippi, the American Civil Liberties Union sent a letter to the state Department of Transporta­tion alleging that employees had targeted a truck driver because he was wearing a turban. When the truck driver appeared in court on the charge for failure to obey an order, the judge reportedly had him ejected from the courtroom for his headdress and told his attorney that he needed to remove the “rag” from his head.

It isn’t only Muslims and Sikhs whose head coverings arouse consternation. In 1986, the U.S. Supreme Court considered the case of S. Simcha Goldman, an Air Force psychologist who had worn a yarmulke without incident for many years, despite a regulation prohibiting . . . . .
Read more on National Law Journal here.

[image of Kate Middleton via]

Turkey’s Democratization Package Includes Further Relaxing the Ban on Headscarves

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Turkey’s Prime Minister Recep Tayyip Erdogan announced a democratization package that includes further relaxing the ban on women wearing headscarves.  Women in universities have been able to wear headscarves, but Erdogan’s announcement extended this ability to women government employees, except prosecutors, judges, and military and security personnel.

Here’s a video of Erdogan’s speech, with English subtitles; the relevant section starts at about 2:19:

http://www.youtube.com/watch?v=XOzlt0rVLKI#t=145

 

LawProf Josh Blackman on “Urban Thug” and Saggy Pants Banned in Houston and Memphis

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Law professor Josh Blackman has a post about dress codes in restaurants banning inappropriate “thug wear.”  He includes terrific photos, including the one below (used by permission); pay special attention to the third sign.

20130705_143832He’s definitely spot on with his imagining that such signs tempt a disparate impact lawsuit.  As private, such places would be subject to “public accommodation” regulations that prohibit discrimination, but constitutional challenges such as free expression and due process would not be applicable.

Recall the “saggy pants” ban by Atlantic City we discussed in early summer, which attracted much publicity, followed by an Ocean City proposal.  And Ada Calhoun’s piece looks at saggy pants ban for a fast food restaurant.  And of course, the issue is discussed in Dressing Constitutionally.

Another Student NRA T-Shirt

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A student in the Orange County California Unified School District wore a NRA shirt to school, was asked to remove it, and then when her parent protested – – – and the NRA got involved – – – the school apologized and allowed her to wear the shirt.

As Adolfo Flores reports in the LA Times, “the white T-shirt — featuring an American flag and silhouette of a hunter with a rifle and the slogan: “National Rifle Association of America, Protecting America’s Traditions Since 1871″ — campus officials apparently decided that it violated dress codes disallowing, among other things, depictions of violence, criminal activity and anything that’s degrading to ethnic values.”

Here’s a video:

http://www.youtube.com/watch?v=XQ7LcG4-n60

The LA Times site also has a video, with the shirt and the student, from the television station KTLA.

Recall that earlier this year a student in West Virginia had a similar situation with a NRA t-shirt; our substantive constitutional analysis is here.   Student symbolic speech, including on t-shirts, is discussed in Dressing Constitutionally.

Orthodox Store Owners v. NYC: The Continuing Dress Code Battle

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As we previously discussed, the New York City Commission on Human Rights (CCHR) has filed complaints against seven Jewish Orthodox-owned stores in Williamsburg, Brooklyn, for their conservative dress codes — codes for patrons rather than employees. 

The stores – – – and the Orthodox Jewish Public Affairs Council – – – are fighting the cases not only in the administrative proceedings, but in the courts of public opinion.  Here’s one advert:

The stores’ argument is that lots of places have dress codes, including court rooms.  (This is certainly true; recall the Tennessee judge who ordered women to wear only long sleeve jackets this summer).   As for the NYCCHR, it argues that the gendered nature of the dress code – – – focusing on modesty rules for women – – – makes women, a protected class, feel unwelcome.

More on Gothamist here.

Again, this is definitely litigation to watch. 

Garment Workers USA

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800px-Spinner's_WeaselWhat is today’s garment industry like in the USA?  Terrific read from NYT in the article, “American Made: A Wave of Sewing Jobs as Orders Pile Up at U.S. Factories,” by Stephanie Clifford:

The American textile and apparel industries, like manufacturing as a whole, are experiencing a nascent turnaround as apparel and textile companies demand higher quality, more reliable scheduling and fewer safety problems than they encounter overseas. Accidents like the factory collapse in Bangladesh earlier this year, which killed more than 1,000 workers, have reinforced the push for domestic production.

But because the industries were decimated over the last two decades — 77 percent of the American work force has been lost since 1990 as companies moved jobs abroad — manufacturers are now scrambling to find workers to fill the specialized jobs that have not been taken over by machines.

 In Clifford’s previous article, she discussed the mechanization – – – and technologization – – – of textile plants, including  “the absence of high-paid American workers in the new factories” that “has made the revival possible.”  

Excellent reporting by Clifford that is pertinent to anyone interested in “dressing constitutionally.”