“Pants-Only” Policy Upheld Against Free Exercise Claim in Retaliatory Termination Case

Can a public employer require a woman to wear pants, even against her religious beliefs?  In its brief opinion in Finnie v. Lee County, Mississippi, a panel of the Fifth Circuit left that question unanswered given the particular circumstances of the case.

After working for a Mississippi Sheriff’s Department for years, Ms. Crystal Finnie converted to the Pentecostal religion, which she told the court, meant she could no longer wear “‘clothing pertaining to a man’s garments,’ such as pants.” But her employer, the Sheriff’s Department, required pants as part of the uniform and told Ms. Finnie that she would have to “wear pants or resign.”IMG_8172_Edit__07235.1364412413.1280.1280

Shortly after filing a complaint with the Equal Employment Opportunity Commission (EEOC) and requesting a transfer to a clerical position where she could wear a skirt and keep her job, Ms. Finnie was fired.

She then filed suit. She argued that the policy violated her First Amendment right to exercise her religion, “constituted unlawful gender and religious discrimination under Title VII of the Civil Rights Act of 1964, and amounted to unlawful retaliation under Title VII.”

But the underlying question was whether Ms. Finnie was terminated as retaliation, and the Fifth Circuit panel held that she did not meet the burden to show she would not have been terminated “but for” her EEOC complaint.  Yet the opinion does not clarify whether her dismissal based upon her religious objection to the dress code would have been actionable.

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Ada Calhoun on the People Involved in Dressing Controversies

clothes racksIn her article, “Fashion police are no joke in some cities and schools,” over at Al Jazeera America, journalist Ada Calhoun explores the stories and people behind three controversies: sagging pants, Borgata “babes,” and students’ “I Heart Boobies” breast cancer awareness bracelets.

Ada Calhoun knows her clothes: She’s the co-author of the bestselling Tim Gunn’s Fashion Bible.  But she also knows that attire provokes strong responses from people.

Want to know what the major of Wildwood thinks about the ban on saggy pants?  Or what rapper The Game thinks?  Want to know what the attorney representing the cocktail servers at the Borgata casino thinks should be qualifications for the job rather than “dominatrix outfit” (hint: not spilling drinks might be important)?  Want to hear from the students who pressed for the right to wear the breast cancer awareness bracelets to school?

Take a look at Calhoun’s excellent reporting.

Bar Exam Revises Headwear Policy After Hijab Incident

After a proctor asked a test-taker to remove her hijab during the bar exam, the Massachusetts Board of Bar Examiners changed its policy regarding its approval process for headwear.

As reported, law graduate Iman Abdulrazzak received approval before the bar exam to wear her hijab during the test, as required by the exam’s security policy in July.

However, in the morning session of the 16-hour test, a proctor passed Iman this handwritten note:

Screen Shot 2013-09-03 at 1.43.49 PM

Iman told reporters the interruption caused her considerable confusion and frustration, though she was able to receive official approval (again) during the lunch break.  

Various news sources reported the incident, and a plethora of commentators chastised the board over the discriminating nature of the policy. The exam board then revised the policy, which now allows headwear worn during the exam for “religious reasons or reasons of medical necessity only.”

In addition to apologizing to Iman, the Executive Director of the exam board told reporters that “the decision to change the policy was an easy one to make.”

But if it was “an easy one to make,” why did it take this outrageous incident to elicit change? After all, requiring an anxious test-taker to jump through an approval process seems constitutionally questionable under the First Amendment’s right to free exercise of religion.  With any luck the issue is resolved, at least in Massachusetts. 

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

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.


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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Julia Gillard, Australia’s Now-Former Prime Minister, and Dressing Professionally

Julia Gillard, Australia’s Prime Minister for the last three years and first woman to hold the position, has been ousted by her own party.  During Gillard’s tenure, her gender became a focus, including a spotlight on how she dressed and looked.


Julia Gillard as Prime Minister in 2011. Should she really have been wearing white at this citizenship event on Australia Day? And look at that collar! Is the skirt too tight? And less than long sleeves? – – – good thing she is not in Tennessee.

[image of Gillard on Australia Day 2011 via]

This fixation on the attire and appearance of female leaders, including Gillard, was expertly discussed last week by  the redoutable and brilliant Anne Summers:

Although male politicians might occasionally have some aspect of their clothes remarked upon—Paul Keating [former Austrailan PM]  was criticised for wearing Italian, rather than Australian-made, suits—they never, repeat never, have to endure the banality of the endless sartorial commentary that all women in politics, but especially the leaders, have to deal with. Women leaders need to adopt strategies to try to neutralise this. Hillary Clinton, when she was running for president in 2008 and later as US secretary of state, adopted the pants suit as a virtual uniform. She varied the colour and added accessories such as scarves or jewellery but essentially she, like men in public life, wore the same outfit every day. German Chancellor Angela Merkel has done the same. She has such an array of different coloured jackets, which she wears over black pants, that some wag even created a pictorial representation of a Pantone-style colour chart of her wearing them all and labelled it ‘Fifty Shades of Angela Merkel’. Gillard evidently struggled for a time to vanquish this issue. She has admitted how hard it was for her to face the daily criticism of what she was wearing. This was especially cruel and relentless in her first year in the job when her jackets, especially, were singled out as ill-fitting and badly designed. In April 2013 Gillard commented that she had since worked to make sure her clothes were not an issue. She now has a wardrobe of well-tailored outfits, mostly suits, in solid colours. Wearing them, she exudes the confidence that comes from knowing her ‘look’ is going to emphasise her overall purpose rather than undermine it.

Yet however hard Gillard and other women leaders work to defuse their appearance as a subject of commentary, they cannot escape it altogether.

Summers goes on to discuss the options exercised by other women leaders, including adopting “traditional female dress.”    Summers is also worth reading on the consequences of Gillard’s departure.

And if you have never seen Gillard’s “misogyny speech” in Australia Parliament, it’s definitely worth watching.  She wore blue.


Idaho GOP Elicits Outrage with Tutu Comment

On Tuesday, Idaho republicans passed a resolution asking the state legislature to effectively override local city ordinances that ban discrimination against LGBTQ persons in employment, housing, and elsewhere.

In support of the proposal, prominent GOP member, Cornel Rasor made national headlines when he said,

“I’d hire a gay guy if I thought he was a good worker. But if he comes into work in a tutu … he’s not producing what I want in my office.”

Outrage aside, Mr. Rasor’s comments clearly show a conflation of sexual orientation and gender identity – that certain clothing signifies a particular sexual orientation, and conversely, that one’s sexual orientation mandates gendered dress choices. Dress, given its public visibility, is often a locus for such a conflation.  However, one wonders what Mr. Rasor might do if a female worker came to the office attired in a tutu.


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New York “Beard Bill”: Necessary?

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?

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Tennessee Judge to Women Attorneys: Long-Sleeve Jackets Required

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.


Women in their short-sleeve jackets in the 1940s

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High Heels and Casino Cocktail Servers

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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Swedish Train Drivers: Men in Skirts

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.




[image via Martin Akersten’s FB page]