Author Archives: Ruthann Robson

Labor Day: Dressing Economically

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Child labor was prominent in United States textile mills and child labor continues in the global attire industry.

Lewis Hines, who spent a decade as a photographer for the National Child Labor Committee, produced many haunting images of child labor.

The 1908 photograph below is the one that I found myself returning to again and again as I researched and wrote the chapter “Dressing Economically,”  Hines entitled the photograph “Rhodes Mfg. Co., Lincolnton, N.C. Spinner. A moments glimpse of the outer world Said she was 10 years old. Been working over a year. Location: Lincolnton, North Carolina.”

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In Hammer v. Dagenhart, decided a decade later, the United States Supreme Court would side with the interests of the Southern Cotton Manufacturers, the organization that challenged the federal statute seeking to regulate child labor, and hold Congress did not have such a power.   The 5-4 majority concluded that to uphold Congressional authority to regulate child labor in textile mills would have dire consequences:  “all freedom of commerce will be at an end, and the power of the states over local matters may be eliminated, and thus our system of government be practically destroyed.”

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Obama at the 50th Anniversary of the March on Washington for Jobs and Freedom

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In his speech commemorating the 50th Anniversary of the March on Washington for Jobs and Freedom, President Obama stated:

“Because they marched, doors of opportunity and education swung open so their daughters and sons could finally imagine a life for themselves beyond washing somebody else’s laundry or shining somebody else’s shoes.”

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“woman carrying laundry home along highway between Durham and Mebane, North Carolina” photo by Marion Post Wolcott, circa 1939, Library of Congress

The care of other people’s attire has been the province of low-wage workers throughout US history, as the chapter “dressing economically” addresses. 

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New York’s New “Topless” Disclosure Law

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Known in some circles as the “bikini bar” bill and in other circles as the “Community Full Disclosure Act,” a new law – – – signed without fanfare by New York’s Governor Andrew Cuomo – – – amends the alcoholic beverage control law to require “disclosure” to the “community” about “bikinis.”

The text of NY A03869 adds a new paragraph to the licensing and re-licensing of establishments serving liquor:

(f) A statement indicating the type of establishment to be operated at the premises. Such statement shall indicate the occurrence of topless entertainment and/or exotic dancing whether topless or otherwise, including, but not limited to, pole dancing and lap dancing, at the establishment.

And further provides that this disclosure, unlike other information, cannot be waived.

Sponsored by a legislator from the New York City Borough of Queens, the reported prompt for the new amendment was a lack of knowledge by the community board recommending a liquor license to a “go-go bar.”

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The United States Supreme Court has rendered a series of cases, often with fragmented opinions, involving nude and semi-nude dancing, concluding that it is “expressive conduct, although” it “falls only within the outer ambit of the First Amendment’s protection.”   Yet the Court allows this expression to be heavily regulated under the so-called “secondary effects” doctrine, a highly criticized notion that assumes the government is not targeting the dancing or nudity, but instead the “secondary effects” of such expression, such as gambling, prostitution, and other crime.   This complicated legal landscape is further discussed in Chapter 2 of Dressing Constitutionally.

Here, presumably the only requirement is “disclosure,” but of course the type of dress worn by the dancers is meant to be a pertinent fact for those making the recommendation and later decision regarding the establishment’s licensing.

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Students Can Wear “I Heart Boobies” Bracelets to School

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Is an “I ♥ boobies (KEEP A BREAST)” bracelet expressing a lewd or disruptive sentiment and thus properly banned by a school?  Or is the bracelet,  promoted by “The Keep a Breast Foundation” working against breast cancer, a political statement that was not causing disruption, and thus not constitutionally prohibitable by a public school?

In essence that was the choice faced by the entire Third Circuit Court of Appeals in B.H. v. Easton Area School District.  In its 9-5 opinion, a majority found in favor of the First Amendment rights of the students, ruling that the school could not ban the “I ♥ boobies (KEEP A BREAST)” bracelets .  The bracelets, the court ruled, may have “ambiguous speech that a reasonable observer could interpret as having a lewd, vulgar, or profane meaning,” but because a reasonable observer could also “plausibly interpret as commenting on a social or political issue,” the school did not have the power to ban them.   Further, the majority of the judges found that there was nothing disruptive about the bracelets.

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The school argued that its authority would be diminished if it could not ban the bracelets and expressed its worries that there was a slippery slope of school attire that it needed to address.  The court found this argument unconvincing, noting that the slippery slope argument also worked in the other direction:

Like all slippery- slope arguments, the School District‘s point can be inverted with equal logical force. If schools can categorically regulate terms like “boobies” even when the message comments on a social or political issue, schools could eliminate all student speech touching on sex or merely having the potential to offend.

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Indeed, the the Middle School‘s administrators seemed inclined to do just that. They initially testified that they could ban the word “breast,” even if used in the context of a breast- cancer-awareness campaign, because the word, by itself, “can be construed as [having] a sexual connotation.”

The dissenting judges urged that schools needed more authority to discipline student expression.   Additionally, they argued that the majority’s opinion – – – which is over 60 pages – – – provided insufficient guidance to school authorities.  Yet perhaps the message of the court is clear: school authorities wishing to curtail students’ expressive attire do so at their own risk.

 I’ve also commented on this case on the Constitutional Law Professors Blog here.

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Indiana Judge Prohibits Buttons and Other Expressions of Support in Bei Bei Shuai Trial

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Buttons4BeiBei-300x225Bei Bei Shuai’s suicide attempt was unsuccessful, and so was her pregnancy.   She now faces murder charges.  After ingesting rat poison trying to end her own life, she was hospitalized, and a Caesarian later performed on the 33 week old fetus.  The baby died in the hospital within a few days.  Given these tragic facts and Indiana’s criminal prosecution, the case has attracted widespread attention and advocacy on behalf of Bei Bei Shuai.

With trial imminent, the judge is reportedly taking steps to maintain courtroom decorum, including stating:

The wearing of pins, buttons, signs, clothing, and similar materials in the courtroom which express support for or against either party in this case is prohibited.

But doesn’t the public have a First Amendment right to expression in a public trial?

Maybe not.

The United States Supreme Court obliquely confronted the issue in 2006 in Carey v. Musladin.  However, in Musladin, the convicted defendant argued that spectators wearing buttons with photos of the victim denied him a fair trial.  The Court’s opinion was decisively procedural, centering on habeas corpus standards of relief.   While the opinion was unanimous, Justice Souter’s concurring opinion contended that trial judges had affirmative obligations to ensure a fair trial, including regulating the attire of spectators.  Souter raised the possibility of the spectators’ First Amendment right to wear buttons, although he stated he did not find such an interest “intuitively strong.”

In the context of support for a victim, the defendant’s constitutional rights to a fair trial should trump.   As I discuss in chapter 5 of Dressing Constitutionally,  a trial judge in a New York homicide trial banned the wearing of “obtrusive corsages of red and black ribbons of approximately five to six inches in length” in People v. Pennisi.   Applying the local courtroom decorum rules prohibiting disruptive conduct, the trial judge used his discretionary power to prohibit all expressive or symbolic clothing and accessories, including armbands, buttons, and flowers, as “disruptive of a courtroom environment, which environment must be scrupulously dedicated to the appearance as well as the reality of fairness and equal.”  The judge criticized his own past practice in a non-jury trial permitting thirty-five spectators wearing bright yellow tee shirts bearing the blue legend “Justice for Jimmy,” the victim.   Other cases allowing the banning of courtroom spectator attire include banning anti-rape buttons, MAAD (Mothers Against Drunk Driving) buttons, and spectators wearing prison guard uniforms in a prosecution for murder of a prison guard.

While the vast majority of spectator attire seems to favor the victim and thus possibly prejudice the defendant’s right to a fair trial, the high profile ‘Central Park Jogger’ criminal prosecution also involved a spectator button ban.  The  trial judge “barred a spectator-brother of one of defendants from wearing a black sweatshirt with the letters emblemized in white, ‘My Brother Antron McCray Is Innocent.’”

Of course, as it turned out, the button was correct; the Central Park 5, including Antron McCray, were indeed, innocent.

Borgata Babes: NJ Judge Finds No Discrimination Against Female Casino Workers

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Applying state law,  Superior Court of New Jersey Judge Nelson Johnson rejected a sex discrimination claim by employees of the Atlantic City Borgata Hotel-Casino in an opinion in Schiavo v. Marina District Development Company, LLC [d/b/a Borgata]. Granting summary judgment for the employer, Judge Johnson applied a sort of “caveat employee” rationale, essentially reasoning that the women knew the costume, weight, and appearance requirements when they “auditioned” for the job.

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“Borgata Babes” as advertised on the casino website

Judge Johnson found that Borgata sought to position itself as a Las Vegas Style hotel-casino, unique in the Atlantic City market, and as an “integral part” of its mission, developed its “Costumed Beverage Servers,” known as “Borgata Babes.”  The women – – – and occasional man – – – are part of the casino’s branding and are advertised as “part fashion model, part beverage server.”  The costume, Judge Johnson tells us, was designed by Zac Posen, a “highly acclaimed fashion designer,” a judge on the television show “Project Runway,” and generally considered a “high end designer” known for “stream-lined and very tailored” couture.   In order to ensure that the “costumed beverage servers”  continued to look good in their attire, Borgata has “Personal Appearance Standards,”(PSA)  including weight restrictions.   At the time of the lawsuit, the PSA mandated that costumed beverage server could not weigh more than 7% of her weight at hiring.

The plaintiffs contended that the PSA was sex discrimination and sex stereotyping and also that PSA was enforced in a discriminatory manner against women but not men.  As to the first claim, Judge Johnson said that the women agreed to be a “babe” – – – a term that “oozes sexual objectification,” and is “at best undignified and at worst degrading.”  He admits that his finding of voluntariness would be disputed by some, including “respected legal scholars” who view American society as “patriarchal,” a term he places in quotes.   Nevertheless, he concludes that because the women “embraced” the label “babe” when they went to work for Borgata, they cannot “shed” it now.

boardwalk-empire-the-birth-high-times-and_1As to discriminatory enforcement, he bemoans the lack of evidence.  He would have liked to have been “presented with a photograph of at least one overweight male” costumed beverage server, especially given the popularity of cameras on phones and the existence of casino surveillance cameras.

Interestingly, Judge Johnson includes a discussion of casino gambling and Atlantic City supporting his finding that the employer’s practices are lawful.  He does not cite any sources, but astute observers might recognize him as the author of a book Boardwalk Empire: The Birth, High Times, and Corruption of Atlantic City, published in 2010, and subsequently popularized as a HBO television series.

Of course, this is not the first time that a court has been presented with a sex stereotyping claim by a female casino worker.  In the notorious case of Jespersen v. Harrah’s Operating Company, Inc. , the en banc Ninth Circuit rejected a challenge to a new make-up and grooming standard applied to female bartenders.  Jespersen and similar sex stereotyping based on dress, is discussed in Chapter 3 of Dressing Constitutionally.

Again, while these cases do not directly involve constitutional issues, but statutory ones, they do demonstrate how far – – – or not far – – – courts are willing to go to protect women’s rights of dress and appearance against the requirements of companies who wish to “brand” them.

Naked on the Beach

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451px-Fire_Island_Nude_BeachNew Yorkers fond of nude, or even semi-nude, sunbathing, should take care this summer.  

Here is an excerpt of my commentary in the (Albany, NY) Times- Union:

A confluence of two political surges could prove treacherous. First, there is a growing government intolerance for nude sunbathing. For example, Fire Island National Seashore recently announced the park service would begin enforcing the state law prohibiting “exposure of a person.” While recognizing that certain beaches had long been considered clothing optional, the park service stated that public nudity was incompatible with the park’s purposes. It explained that not everyone accepted nudity (“visitor use conflict”).

Second, the continuing concern with protecting children from adult nudity has led to legislative enthusiasm in classifying people as sex offenders. The New York Legislature this session entertained a bill that would create new crimes of “public lewdness,” including a felony that requires registration as a sex offender. People who expose their private parts in public where a child under 14 is “likely to present,” whether or not such a child is actually present, would commit the felony.

Read the rest of the commentary here.

Iowa Supreme Court: It’s Not Sex Discrimination When Male Employer Finds Female Employee’s Attire Provocative – – – and Fires Her

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The Iowa Supreme Court issued its opinion in Nelson v. Knight ruling for the employer, James Knight, a dentist, and against his employee of more than a decade, dental assistant Melissa Nelson.  Brought under the Iowa statutes governing sex discrimination, the case is not a constitutional one, even as it draws upon constitutional notions of sex and gender equality.

As the court explained the situation:

Dr. Knight acknowledges he once told Nelson that if she saw his pants bulging, she would know her clothing was too revealing. On another occasion, Dr. Knight texted Nelson saying the shirt she had worn that day was too tight. After Nelson responded that she did not think he was being fair, Dr. Knight replied that it was a good thing Nelson did not wear tight pants too because then he would get it coming and going.

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Dressing in the Dental Office, circa 1942

For the Iowa Supreme Court, Nelson did not have a claim for sex discrimination. 

It concluded it was not her sex and implicitly not the way she dressed that was the reason for her termination; instead it was her specific relationship with her employer that caused his wife to be jealous and thus insist on Nelson’s termination.  A special concurring opinion took a somewhat more nuanced view, arguing that while she may have had a claim for sex discrimination, the facts she alleged did not support it: even if  “Nelson was fired because Dr. Knight was physically attracted to her, the attraction and resulting threat to the Knights’ marriage surfaced during and resulted from the personal relationship between Nelson and Dr. Knight” and not from any  “gender-based discriminatory animus.”

Thus the seven Justices of the Iowa Supreme Court – – – coincidentally all men – – – unanimously agreed that Knight’s termination of Nelson was perfectly legal.

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The Hoodie Defense: George Zimmerman Acquitted

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It may have sounded preposterous to many when pundit Geraldo Rivera first contended that the clothing worn by the victim of a fatal shooting – – – a hoodie – – – was “as much responsible” for the victim Trayvon Martin’s death as George Zimmerman, the killer, was.  However, with the acquittal of George Zimmerman, Rivera took the occasion to gloat:

I was right about the hoodie wasn’t I? I hate to brag, but I got criticized by every pundit in America when I said Trayvon Martin would be alive today but for the fact that he was wearing thug wear – he was wearing the hoodie. Turns out now that we look at George Zimmerman’s interviews with the police; he didn’t profile Trayvon Martin because he was black, he profiled him because he was wearing a hoodie.


Whether or not a hoodie can be characterized as “thug gear” is not really the issue.  Instead, this is yet another example of how racism is recalibrated and justified as a matter of style and dress.  It is similar to the criminalization of “saggy pants” and “gang attire” that disproportionately effects young men of color.   And it is not dissimilar to blaming women who are victims of sexual assault for their “provocative” dress.

Protesters in support of Trayvon Martin have adopted the hoodie, which is now becoming a symbol not of “thug wear” but of the continuing struggle for racial justice.

“Hippie Chic” and Hair

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Jim_Morrison2The Boston Museum of Fine Arts has a new exhibit by Curator Lauren Whitley “Hippie Chic.”  The exhibit profiles the street styles and the couture of 1960s and 1970s alternative culture that produced an “eclectic, highly individual look, mixing vintage and ethnic clothing with fashions inspired by contemporary psychedelic Pop art, nature, fantasy, and ethnographic art.”   Take a look at the video and slide show here.

In an interview with National Geographic, Whitley observes that the fashion was anti-fashion, even as it was picked up by couture.  She notes that part of the hippie style was not only clothes, but also hair: “Long hair was defining.  If you had long hair, you were called hippie, even if you weren’t.”

Hair and hippies were not only fashion statements, they were also constitutional issues.  The play HAIR went to the United States Supreme Court in Southeastern Promotions, Ltd. v. Conrad; the Court decided in 1975 that the directors of the Chattanooga Memorial Auditorium, a municipal theater in Tennessee, unconstitutionally rejected an application to stage the play with its brief nude scene. 

However, the United States Supreme Court refused to grant certiorari in at least nine male hair length cases involving students, often over a dissent by Justice William O. Douglas who opined that these cases produced a conflict in the circuits that was deep, irreconcilable, and recurrent, with the federal court “decisions in disarray.  The judges had great difficulty discerning whether hair length regulations for boys – – – but not girls – – – constituted a sex equality issue just as they had great difficulty understanding whether or not hair length was sufficiently expressive to meet the threshold for a First Amendment claim.   A fuller discussion appears in chapter 3 of Dressing Constitutionally.

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