Supreme Court Asked to Fashion a Standard for Clothes

The United States Supreme Court today heard oral argument in Sandifer v. United States Steel Corporation centered on the meaning of  “changing clothes” in section 203(o) of the Fair Labor Standards Act.  As we discussed when the Court granted certiorari, the Seventh Circuit’s opinion by Judge Richard Posner found in favor of U.S. Steel that donning and doffing the safety gear was not necessarily changing clothes, because

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.

He included an image in the opinion (at right) and stated

work clothesAlmost any English speaker would say that the model in our photo is wearing work clothes.

And indeed, Justice Ginsburg, during the oral argument at the Supreme Court did just that, but the discussion continued:

JUSTICE GINSBURG: But we’re dealing with here, from the picture, that looks like clothes to me.

MR. SCHNAPPER: Your Honor, I think that your question raises an excellent point. One of the problems with the picture is that it withholds from you other information that you would use to assess whether to describe it as clothes. You don’t know what -­

JUSTICE KENNEDY: Except you would look and say, those clothes probably have something special underneath them. I mean, in ordinary parlance I think that would be a proper use of diction.

MR. SCHNAPPER: If you saw an airbag jacket, you would probably call it clothes unless you are an equestrian. It looks like a jacket. If you saw a compression torsion — a torso compression bandage in a photograph, you would call it clothes, because you don’t have all the relevant information.

JUSTICE ALITO:  Why is it that the jacket and the pants in that picture are not clothes?

MR. SCHNAPPER: In our view — well, let me — part of it — first of all, they are designed for a protective function, to protect you from catching fire.

In addition to the ruminations on the meaning of clothes, perhaps leading to a definitional rule, there were attempts to understand why it mattered in this interpretation of the statute.   The statute excludes from “hours worked”

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.

Thus an employee would need to be paid for putting on “gear.”

But if the Court can’t tell by simply looking, then what?  As Justice Kagan noted toward the end of the argument, the distinction between clothes and gear “seems the quintessential question of statutory interpretation to which we would normally defer to the agency,” but in this case, the agency hasn’t issued a regulation.  Justice Scalia offered his own explanation for the administrative failure to address the matter with a rule: “Too complicated is why.” 

Thus, while Judge Posner’s opinion for the Seventh Circuit did raise some constitutional considerations about agency and executive power regarding differing meanings driven by politics, the constitutional question implicit in the Supreme Court arguments involve the separation of powers and the role of the Court in statutory interpretation.

So it is up to the Court to “fashion a standard,” as Eric Schnapper, representing Clifton Sandifer, phrased it during oral argument.

Unisex Hats in the United States Marines

The “integration” of women into the United States military (and military academies) has often raised the issue of clothes.  The usual problems involve pants or skirts, pantyhose if skirts, make-up, and shoes.

But there are also hats.

Certain media outlets are headlining articles today “Obama wants Marines to Wear ‘Girly’ Hats.”   For example, the NY Post proclaims,

Thanks to a plan by President Obama to create a “unisex” look for the Corps, officials are on the verge of swapping out the Marines’ iconic caps – known as “covers” — with a new version that some have derided as so “girly” that they would make the French blush.

Here’s a photo from the article in the Marine Corps Times contrasting the old hats with the proposed new hats and seeking input:


According to the NY Post, one set of hats for the “leathernecks” is more “shops of Christopher Street” than “Halls of Montezuma,” and might look “too French.” 

In case you cannot tell which is which, the old (masculine) hats are on the left and the new (girly, French) hats are on the right.

Blonde Highlights & Black Woman = Termination from Hooters

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:


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]

The Cost of Litigating the Right to be Bearded

Baerte_ohne_textA man fired for refusing to shave his beard has been awarded $65,174.83 in back pay, costs, and attorney’s fees. As reported, Abdulkadir Omar refused to comply with demands from his employer, American Patriot Security & Investigations, Inc., to shave, citing his sincerely held religious belief that, as a male Muslim, he is required to keep a beard. (Contrary to the misleading headline of the linked article, Omar was not awarded “$66,000 in back pay” — $50,791.50 went to attorney’s fees.)

The timeline of the firing, as alleged in the complaint, indicates there may be more to the story than a dress code violation. Omar began working for the private company, American Patriot, as a security guard on May 28, 2009. Five months later, a supervisor ordered him to shave his beard. Omar refused, citing his “sincerely held belief.” Almost six months after that, on April 21, 2010, Omar met with Project Manager Nicole Smith to complain that he had not been “paid all his wages for time worked.” During this meeting, Smith repeated the request that Omar shave his beard. He again refused, and contacted the Council on American-Islamic Relations (CAIR), which issued a letter on April 23 corroborating Omar’s claim. That same day, Scott Jacobs, CEO of American Patriot, suspended Omar without pay over the facial hair issue, and “challenged [his] religious belief.” The statutory claim of religious discrimination is, therefore, alleged as retaliation for Omar’s complaints about unpaid wages.

The judge here found Omar’s claim to be legitimate. The wide latitude given to private employers to govern employee dress and appearance with few constitutional implications is discussed in the “Dressing Professionally” section of Dressing Constitutionally.

As this case shows, regulation of appearance can function as both an end in itself and as a cover for other wrongs: when Omar complained about wages owed, his employer suspended him for a dress code violation, and he won his case on a claim of appearance-based religious discrimination.  Yet as this case also demonstrates, the cost of vindicating rights is high.

[image via]

Isis Brantley and Her Ongoing Battle for Hair Braiding Justice in Texas

In 1997, natural hair stylist and hairbraider activist, Isis Brantley was arrested for braiding hair without a barber license, a crime under Texas law. She challenged her arrest, and the Texas legislature eventually created a separate licensing scheme for hairbraiders.

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Isis Brantley

16 years later, Brantley is back in court — this time, filing federal suit against the Texas Department of Licensing and Regulation. According to Brantley’s complaint, Texas law would require her to “spend 2,250 hours in barber school, pass four licensing exams, and spend thousands of dollars … all to teach a 35-hour hairbraiding curriculum” to her students. She alleges that the law violates her 14th Amendment Due Process, Equal Protection, and Privileges or Immunities rights, as the 14th Amendment was designed to “protect economic liberty” and prevent unreasonable government interference “with the right to earn an honest living in one’s chosen occupation.”

In filing the suit, Brantley joined forces with the Institute of Justice, a well-known libertarian law firm, producing the video below. She also published a piece in Huffington Post, “Hairbraiding is the Latest Civil Rights Struggle.”  Like other civil rights struggles, litigation in the court of public opinion may be just as necessary as in traditional legal forums.


[image via]

Banksy’s Uniforms and Masks

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

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]

Man with Dreadlocks Sues Government Employer over Gendered Hair Policy

Last month, Richard Williams filed suit against the Georgia Department of Corrections after he was fired for refusing to trim his hair.

As reported, Williams worked for the Department for over 10 years as corrections officer. During that time, he began to grow his hair longer, and for the last for 5 years the length of his hair went down his back.

According to Williams’s complaint, in June 2010, the Department Chief told Williams to “consider cutting [his] hair.” A month later, dreadlocksafter being asked again, Williams refused, saying “I do not plan to cut my hair and forcing me to do so would violate my indelible rights, religious beliefs and spiritual faith.” 

Then, in January of 2012, the Department passed a new policy stating, “males will not adorn dreadlocks or braids and hair shall not extend over the top of a shirt collar.” Two days later, Williams was told “to leave work, get a hair cut and return to work within two (2) hours.” He refused, and in February, the Department reduced his pay by 5% and required Williams to turn in all of his Department issued equipment. Williams then filed a claim with the Equal Employment Opportunity Commission (EEOC).

As discussed in the Dressing Religiously chapter of Dressing Constitutionally, incarcerated persons have successfully used religious arguments to challenge dress codes prohibiting dreadlocks, albeit with some difficulty. But in his EEOC filing, Williams alleges that he was discriminated against because of his race, sex, and in retaliation, rather than religion. He adds that “African American males as a class are adversely impacted by respondent’s Dress Code and Appearance Policies.” Shortly after the filing, Williams’s employment was terminated.

After reviewing Williams’s claim, the EEOC found that Title VII of the Civil Rights Act gives Williams a right to bring a civil action. Representing himself, Williams has filed a civil suit against the Department in federal court. And now, at the very least, the Department may have to justify why it forbids men and allows only women to have dreadlocks, braids, and longer hair styles in light of the equality claims asserted.  Although differences in men and women’s hair lengths have often been upheld, the rationales for such differences are more and more tenuous.

[image via]

Paintings Depicting Nudity Removed from County Exhibition

Botticelli_VenusSan Bernardino County officials removed two paintings by Efron Montiel Jiminez and one by Armando Aleman from the annual National Hispanic Heritage Month exhibition at the County Government Center. The paintings feature nude figures from various angles, and their removal has raised First Amendment issues concerning the display of nudity in public buildings.

The county reportedly invited artists to submit works without stipulation, accepted the three, and then installed them in public space inside Government Center. After receiving complaints from “several visitors and county employees,” county officials removed the paintings and asked the artists to pick them up. A third artist reportedly censored his own paintings, with a sign apparently reading “Censored for a ‘Government’ Building.”

The National Coalition Against Censorship and the ACLU of Southern California have taken issue with the removal of the paintings, reportedly sending a letter to the County Board of Supervisors. The letter alleges that the First Amendment applies to Government Center, as a “public space opened to exhibiting artwork,” and that “government officials cannot arbitrarily impose their prejudices on a curated exhibition.” The letter cites the Ninth Circuit case of Hopper v. City of Pasco for the proposition that, “by opening its display space to expressive activity,” it has “evinced ‘an intent to create a designated public forum.’” In a “designated public form” with First Amendment protections, a court should apply strict scrutiny, requiring a “compelling state interest” and a means “narrowly drawn to achieve that end.”

San Bernardino spokesman David Wert has attempted to distinguish the situation at Government Center, reportedly saying, “The county doesn’t believe it’s censorship because the county isn’t an art gallery. People don’t go to the Government Center to see art.” He goes on to cite personnel rules that “guarantee employees a work environment where they’re not subjected to offensive images” and the usual appeals to the sensitivities of children. He describes the removal of the paintings as an act of “discretion” rather than censorship, but acknowledges, “In retrospect, I wish we had taken a look at the artwork in advance.”

[image via]

Ted Cruz and His Supreme Court Argument Boots

From a profile of Ted Cruz in GQ:

“When I was Texas solicitor general, I did every argument in these [ostrich-skin cowboy]  boots. The one court that I was not willing to wear them in was the U.S. Supreme Court, and it was because my former boss and dear friend William Rehnquist was still chief justice. He and I were very close—he was a wonderful man—but he was very much a stickler for attire.” 

It was only after Rehnquist died that Cruz felt comfortable wearing his cowboy boots in the Supreme Court—and only then because John Roberts (“a friend for many years”) blessed it. “I saw John shortly after his confirmation,” Cruz said, “and I guess I was feeling a little cheeky, because I took the opportunity to ask, ‘Mr. Chief Justice, do you have any views on the appropriateness of boots as footwear at oral argument?’ And Chief Justice Roberts chuckled and he said, ‘You know, Ted, if you’re representing the state of Texas, they’re not only appropriate, they’re required.’ “



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