Author Archives: Ruthann Robson

New York “Beard Bill”: Necessary?

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Swedish_beardThe so-called “beard bill” introduced into the New York Assembly seeks to “clarify” that an unlawful discriminatory employment practice would include requiring an employee ” to violate or forego the wearing attire, clothing, or facial hair in accordance with the requirements of his or her religion.” 

Bill A00864A would amend the NY Human Rights Law, which now specifically references the   “observance of any particular day or days or any portion thereof as a sabbath,”  to include this language:  “OR THE WEARING OF ANY ATTIRE, CLOTHING, OR FACIAL HAIR IN ACCORDANCE WITH THE REQUIREMENTS OF HIS OR HER RELIGION.”    This addition would not change the law’s required balancing, allowing the employer to demonstrate”that it is unable to reasonably accommodate the employee’s or prospective employee’s sincerely held religious observance or practice without undue hardship on the conduct of the employer’s business.”

As a “clarification,” one issue is whether this amendment is necessary under current state, federal, and constitutional law.  The bill states its justification by reference to one specific case:

in New York City where a member of the Sikh religion who worked for the MTA was ordered to remove his turban and wear the MTA hat. When he objected, on religious ground, the MTA responded that he may wear the turban if he affixes an MTA badge to the front. This was unacceptable as wearing a turban is a solemn religious duty for Sikhs and affixing a badge to it would not be religiously proper. This bill would ensure that persons like the gentleman described above will no longer be discriminated at their places of work because of their religious duties.

That case resulted in lawsuits brought by the Center for Constitutional Rights and by the United States Justice Department; they were duly settled and the only requirement is now that the color of the turban  fabric is blue, consistent with the MTA uniform.

While the proposed bill might have political appeal, the problem has never been that the law did not recognize that “attire, clothing, or facial hair” are religious practices, as much as observation of a Sabbath.  Instead, the issue in the statutory context, as well as in the First Amendment context, is the issue of accommodation.  When an employer requires a “uniform” or has a specific “look policy,” any deviation – – – religious or otherwise – – – can cause the employer consternation.

However, the issue of religious exemption from employer policies raises the question of equality between believers of a specific faith and nonbelievers.  Men are not completely clean-shaven for a number of reasons: religion, rashes, culture, and style.  Should it matter why a man is denied employment because of his beard?

[image via]

Tennessee Judge to Women Attorneys: Long-Sleeve Jackets Required

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As reported by The Tennessean,  a judge is seeking to have women attorneys look more “professional” in court:

Dress code Memorandum

To: Members of Rutherford/Cannon County Bar
From: Judge Royce Taylor
Date: June 7, 2013
Re: Professional Dress for Attorneys
At the recent Bench/Bar Committee meeting, the subject of attorneys’ professional dress in court was discussed. The unanimous opinion was that the women attorneys were not being held to the same standard as the men. It was requested that the judges require all attorneys to dress professionally.
I have advised some women attorneys that a jacket with sleeves below the elbow is appropriate or a professional dress equivalent. If you have questions, please contact my assistant, Angela Sellers, at [phone #].
Your personal appearance in court is a reflection upon the entire legal profession. Litigants and members of the public should be confident that we both act and look professional.

Women often bear the brunt of “professional” dress codes, although interestingly this memo suggests that women are being treated more leniently than their male counterparts.  And while pantsuits have often been a focus, women’s jackets – – – or lack – – – have been important for women attorneys.

For example, when Ms. DeCarlo, a legal services attorney in Camden New Jersey, wore slacks (gray wool), a sweater (gray), and a shirt (green) during a court appearance in January 1975, she was eventually held in contempt by the trial judge.  She appealed the contempt order, arguing in part that it constituted “unconstitutional discrimination against female attorneys.”   The trial judge’s objection to DeCarlo’s apparel focused on her sweater and her “open-collared blouse.”   She represented herself on appeal – – – wearing the same outfit that the trial judge had found worthy of contempt – – – and won.

Unlike in some other nations, attorneys in the United States do not wear robes.  Thus, courtroom attire is subject to interpretation.  Most likely, most attorneys will conform to the judge’s desires.  However, if they chose to challenge him, he should hope that the appellate judges share his views about arm- length in jackets.

800px-StateLibQld_1_205152_Two_women_enjoying_a_drink,_1940-1950

Women in their short-sleeve jackets in the 1940s

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Protest Attire at the Supreme Court: Prohibiting it is Now Unconstitutional

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You could be arrested for being at the United States Supreme Court and wearing a t-shirt that proclaims you support Occupy or one that says you support the Tea Party or one that says you don’t support either group, or even wearing a black armband or a button.  This is because  a federal statute, 40 USC §6135 provides:

It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.

In an unprecedented ruling today, a federal district judge has held the statute unconstitutional under the First Amendment.  In her 68 page opinion in Hodge v. Talkin, Judge Beryl Howell ruled that the statute does not reasonably accomplish the Government’s stated interests and that it is overbroad.  Indeed, she wrote, it could be applied to a group of preschoolers wearing their school shirts!

She rejected precedent that had upheld the statute and refused to construe it with limitations that might render it constitutional.

800px-You_are_here_-_T-shirtThis is an important opinion that could mean that the Supreme Court plaza is no longer a no-free-speech zone.  As many have noted, including Justice Thurgood Marshall in a dissenting and concurring opinion upholding a portion of the precursor statute, it was  “ironic” that the institution charged with upholding the First Amendment seemingly exempted itself.

My more extensive analysis is available over at the Constitutional Law Professors Blog here.

UPDATE: SUPREME COURT REACTS here.

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Alleged Aurora Theater Shooter to Wear Street Clothes At Trial

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Orange Prison Jumpsuit Costume

For defendants who are incarcerated at the time of their trial, the issue of their clothing can be a fraught one with constitutional consequences.  Does “prison garb” – – – as it is usually called – – – deny a defendant a fair trial?

In the case of James Holmes, the alleged Aurora shooter, the trial judge has reportedly ruled that Holmes must be allowed to wear “street clothes”:  ““The presumption of innocence requires the garb of innocence.”

The judge presumably relied upon Estelle v. Williams, decided by the United States Supreme Court in 1976.  The Court unequivocally held that compelling a defendant to wear “prison garb” during the state court trial was a violation of the right to a fair trial inherent in the Fourteenth Amendment’s Due Process Clause.   Unlike wearing shackles or other restraints, there was no state interest possibly served by wearing “jail attire.”  Further, the Court noted that there were equality concerns because the practice affected those who were unable to afford to post bail prior to trial, a factor that would not be pertinent in Holmes’ case.

In Estelle v. Williams itself, the defense counsel failed to object vigorously enough and Williams was denied relief.  In doing so, the Court recognized that attiring a defendant in jailhouse garb could be an attempt to garner juror sympathy.

In Holmes’ case, his attorneys seem to have made a clear decision that he should not appear in a prison uniform.

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High Heels and Casino Cocktail Servers

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high heels

are these high heels high enough?

 

As Jezebel reports, Foxwoods Resort Casinos is requiring its hundreds of cocktail waitresses to wear high heels – – – maybe.  It did rescind its mandatory 2 inch heel requirement in favor of polishable black shoes that are subject to approval:  “That’s code for ‘we get to decide if it’s sexy enough.'”

Presumably, male cocktail servers — there must be some? — were never covered by the 2 inch heel policy and perhaps they do not need to have their polishable black shoes approved.   Such a sex-disparate dress code might not be acceptable in Sweden, but has been upheld in the United States.   One of the most famous cases upholding a sex-disparate dress code also involved casinos; not Foxwoods, but Harrah’s.

In Jespersen v. Harrah’s Operating Company, Inc., the en banc Ninth Circuit considered Harrah’s policy that required that women’s hair “must be teased, curled, or styled “ and “worn down,” and that for women, “Make up (face powder, blush and mascara) must be worn and applied neatly in complimentary colors. Lip color must be worn at all times.”   On the contrary, the policy provided that for men, “Eye and facial makeup is not permitted,” as well as mandating that hair must not extend below the top of the shirt collar.   The court rejected Jespersen’s argument that wearing make-up did impede her authority over rowdy patrons.  Instead, the court stated that “Harrah’s grooming standards do not require Jespersen to conform to a stereotypical image that would objectively impede her ability to perform her job requirements as a bartender.”  The 1996 opinion concluded that Title VII, the federal civil rights statute prohibiting sex discrimination, was not violated by the sex-disparate dress codes.   

Implicit in this finding, as in so many cases of private employment involving dress and grooming codes,  is the notion that it is employers – – – rather than employees – – – that have constitutional rights.  The employers’ rights require it to be free from government (over)regulation.   

 Thus, the employees’ reported choice to unionize and bargain for conditions of work, including shoes, is a particularly wise one.  And if a particular pair of low heeled shoes prove not sufficient for carrying drinks, there would be a grievance.

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Masked Community Crusaders Cleaning Up Crime While Committing One in Atlanta

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 A man calling himself “Crimson Fist” and a woman, “Meta Data” reportedly like to wear masks and costumes while “patrolling” the streets in an Atlanta neighborhood with the intent of foiling crime.

Here’s a video featuring their efforts:

http://www.youtube.com/watch?v=2WMp2qTFTes

 

 The problem is that they may very well be violating a state criminal statute.  Georgia statute §16-11-38 criminalizes the wearing of a “mask, hood, or device which conceals identity of wearer” in a public place.  While there are a few exceptions – – – Hallowe’en and umpire masks – – – none seem to apply to the Atlanta duo.

Such anti-masking statutes have several rationales related to the prevention and identification of crime, and in the South they are often closely related to anti-Klan efforts.   Constitutional challenges to such statutes, usually on the basis of First Amendment free expression, have had mixed results.  The initial hurdle is showing that there is some sort of protected expression intended by the wearer which would be understood by observers.   This might be a high hurdle indeed for Mr. Fist and Ms. Data. 

Moreover, if the crime-stopping pair are tolerated by law enforcement, later arrests – – –  say of protesters wearing Guy Fawkes masks – – – will be susceptible to claims of viewpoint discrimination by the police under the First Amendment.

Swedish Train Drivers: Men in Skirts

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According to Swedish news reports, a Swedish train company’s uniform regulations provide that employees must wear a skirt or long trousers, and denied shorts, the male employees wore skirts.

The employer initially gave its approval to the men in skirts:

“To say anything else would be discrimination,” communications head Tomas Hedenius told the newspaper.

The notion that there could not be a gender disparate dress code would not necessarily be true in the United States.  Indeed, courts have upheld sex-specific dress codes on numerous occasions.

Today, however, the employer reportedly lifted the ban on shorts, so that men will no longer have to wear skirts – – – and presumably women will be wearing shorts as well.

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[image via Martin Akersten’s FB page]

Dress Code for Librarians

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The role of a professional organization can be to set codes of conduct, perhaps including professional dress.  The American Library Association does not have a dress code, but some researchers are trying to determine whether it should according to a “Annoyed Librarian” column at Library Journal.  The post links to the survey which is worth a look, including questions such as whether “name tags” would be assets and whether a dress code would “increase the perception and role of librarians” or “increase salaries across the profession.”  The survey also posits the ultimate question of whether the American Library Association should pay attention to the issue.   The views of “Annoyed Librarian” and the commentators to the column are decidedly negative.

Librarian dress, like academic dress, was once highly regularized.  Although perhaps he did not dress for his usual workday in a similar fashion, here is the portrait of Thomas James, the first Librarian at the Bodleian Library at the University of Oxford:

Thomas_James,_librarian

Today, many professions, employers and workers struggle with the concept of “dressing professionally.”   Whether there should be policies, especially if those policies can result in adverse employment actions, is a hotly debated question.  Because many librarians work in public libraries, schools, or universities, there are certainly First Amendment considerations.  If the dress code makes distinctions based on gender, that would raise a raft of concerns in both public and nonpublic libraries.

 

 

 

The Fedora as a Symbol of Immigration Fairness

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A new media campaign uses ” the fedora as a metaphor for the many hats that women wear” and a “symbol of the need for immigration reform that treats women fairly.”  The well known fashion photographer Albert Watson is spearheading “fedoras4fairness” as the video below explains.

Hats, of course, have featured prominently in nation-building.  William Penn’s hat and the Elizabethan Cap Act are but two examples. 

(hat/tip Janet Calvo)

High School Graduate Penalized for Wearing Native American Feather at Ceremony

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168px-European_Buzzard_primaryAs reported in Indian Country Media, a graduating high school student – – – and member of the Poarch Creek Band of Indians in Alabama – – – has been fined $1,000 for wearing a feather along with the tassel on her graduation cap.

Chelsey Ramer, the student, was graduating from Escambia Academy, which is not a public institution.   Thus, Ramer cannot assert a First Amendment right against the non-governmental school.   She might have claims under federal and state discrimination laws.

(h/t Allie Robbins)