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.

[image via]

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]

The Book


The intertwining of our clothes and our Constitution raise fundamental questions of hierarchy, sexuality, and democracy. From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices. In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations. Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality. At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies. Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade. The regulation of what we wear – or don’t – is ubiquitous. From a noted constitutional scholar and commentator, this book examines the rights to expression and equality, as well as the restraints on government power, as they both limit and allow control of our most personal choices of attire and grooming.

See the Table of Contents and Read the Introduction here

CANADA Book Launch/Presentation at Osgoode Hall September 23, 2013
UK Book Launch/Presentation: November 26, 2013

Listen to a 5 minute interview with Jacki Lyden aired on NPR’s ALL THINGS CONSIDERED here;  a 12 minute interview with Mocrieff aired on NewsTalk IRISH radio here (starts at 35:00); a 60 minute interview on NPR’s The Diane Rehm Show here; a 20 minute interview with Brian Lehrer of WNYC  here;  a 15 minute interview on LA’s KPCC  “AirTalk” with Larry Mantle on school dress codes here;  a 60 minute discussion on Wisconsin Public Radio’s The Joy Cardin Show here;  a 15 minute discussion with Margaret Ramirez on CUNY’s “Book Beat” here.

Read an interview with Carrie Murphy on the fashion site Refinery29 here; an interview on UK’s LawBore here; a BBC article on the book here; a review by Dean and Professor Kim Brooks in Jotwell here.


at your local independent bookstore,
direct from Cambridge University Press (PB US $32.99),
or as an e-book (Kindle app) (US less than $15)

Court Decides: Bikini v. Pastie

District Judge Fred Biery, known for his lively and pun-filled writing as in last year’s First Amendment Establishment Clause opinion on school prayer, has issued a suggestive order denying a preliminary injunction in “The Case of the Itsy Bitsy Teeny Weeny Bikini Top v. The (More) Itsy Bitsy Teeny Weeny Pastie.”  (The actual name of the case is 35 Bar and Grille, LLC v. City of San Antonio).


In this First Amendment challenge, plaintiffs are businesses employing “exotic dancers” who claim that a 2012 amendment to the San Antonio Code of Ordinances (see Chapter 21, Article IX, Sexually Oriented Businesses) would require them either to submit to licensure or require their dancers to switch from pasties to bikini tops.  The businesses claim infringement of the dancers’ free expression and that San Antonio has not satisfied its burden under the secondary effects doctrine to demonstrate harm.

Noting that customers might better enjoy a performance by the fully-clothed Miss Wiggles (pictured), Judge Biery encourages the parties to engage in “reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending.” 

While Biery’s opinion does illustrate the tendency of many courts to trivialize First Amendment claims regarding nudity, his previous opinions are evidence that his light treatment of partially clothed expression is not unique.

[image via]

Hemlines in Uganda

According to an article in the Mail & Guardian, the Ugandan government is again considering criminalizing women’s attire “above the knee.”   Certainly, hemlines have fluctuated, as show in the graph below (via).






But the difference between fashion and state mandated attire is a crucial one.  Uganda’s effort is part of an anti-pornography bill that would also censor images in the media and on the internet.



Utah Bill on Gender (Non)Conformity in Dress as Employment Discrimination

Utah’s SB 0262 (2013) would amend the Utah Antidiscrimination Act and the Utah Fair Housing Act to include prohibiting discrimination on the basis of sexual orientation and gender identity.

tapestry women and menThe bill specifically allows the maintenance of gender specific dress and grooming codes by employers, but would allow some flexibility for individuals to choose their gender appearance:

7)     (a) This chapter may not be interpreted to prohibit an employer from requiring an employee, during the employee’s hours at work, to adhere to reasonable dress or grooming standards not prohibited by other provisions of federal, state, or local law, if the employer permits any employee who has undergone gender transition before the time of application for employment, and any employee who notifies the employer that the employee has undergone or is undergoing gender transition after the time of application for employment, to adhere to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning.

          (b) For the purposes of this Subsection (7), if an employer has reason to believe that an applicant’s or employee’s gender identity is not sincerely held, the employer may require the applicant or employee to provide evidence of that gender identity. A person may prove the person’s gender identity by providing evidence, including medical history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity, or any other evidence that the gender identity is sincerely held or not being asserted for an improper purpose.

The bill’s passage would certainly be progress, but even more progress would be a prohibition of gender-based dress and grooming codes as within the definition of discrimination.

{image via}

Pink as Punishment?

cross-posted from Constitutional Law Professors blog March 8, 2012

Controversial sheriff Joe Arpaio and his prison practices  are central to the Ninth Circuit’s opinion in Wagner v. County of Maricopa.

At issue is the color pink.

270px-Pink_triangle.svgOr more precisely, at issue in the case is the County of Maricopa’s practice of dressing-out pretrial detainees in prison garb that includes pink underwear.  The now-deceased prisoner, Eric Vogel, was mentally disturbed and apparently reacted quite negatively to the pink underwear.   A divided panel reversed on the evidentiary issues, including hearsay and expert testimony regarding the prisoner’s reactions to the pink underwear.

However the Ninth Circuit also commented on the constitutional contours of the case.  It stated that while certain procedures, including a strip search, may be necessary to “secure the safety on an institution” even though it may impinge upon the dignity of innocent inmates, the procedures “should reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.””   Quoting Bell v. Wolfish, 441 U.S. 520, 539 (1979), the panel continued that “if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.”

Thus, the Ninth Circuit stated:

Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification.

It added that it appeared that this question was

still open for exploration at trial on remand. Alternatively, the plaintiff may prevail on the narrower proposition that to apply this procedure automatically to a man known by his jailors to be in need of psychiatric treatment was itself a violation of due process. Because of the evidentiary rulings of the trial court neither issue was presented to the jury.