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.

[image via]

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)

Graduation: Not Suitably Dressed Parents Excluded

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The usual public high school graduation ceremony controversies involve the graduates: must the graduate wear a robe? are the robes gender-segregated?  must the robes not be adorned with cultural, religious, or other insignia?

But reportedly, a public high school in Virginia excluded a graduate’s parents for not conforming to the graduation dress code because they were  wearing “jeans and tennis shoes.”

Steve Jobs, wearing his trademark jeans and tennis shoes (and black turtleneck)

Steve Jobs, wearing his trademark jeans and tennis shoes (and black turtleneck)

Just as students have constitutional rights at graduation, so do spectators.  The parents may have a difficult time arguing that their dress was sufficiently “expressive” to meet the threshold for a First Amendment claim.  But the parents may have an easier time arguing that the dress code for spectators infringed upon a liberty interest under the due process clause of the Fourteenth Amendment.

In any case, the school principal’s argument that there was advance notice of the dress code holds little weight: the problem is not notice, but the substantive restrictions placed upon parents coming to a public school ceremony to see their child graduate.

[image of Steve Jobs via]

Mandating Boardwalk Attire is Unconstitutional

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Can a municipality mandate a dress code?   The short answer is generally no, at least not a constitutional one.  Although there are certainly laws prohibiting public exposure or indecency, the government cannot stretch the concept of “indecency” to include respectable or tasteful.

The proposal to be considered by Wildwood, a coastal town in New Jersey  famous for its boardwalk, reportedly seeks to maintain its “family friendly” atmosphere by mandating shirts (seemingly on men and women) after 8pm, and prohibiting lowered waistbands – – – a fashion often known as “sagging” – – – by declaring that the waist band of shorts, swim-trunks, pants and/or skirts shall not be worn more than 3 inches below the wearer’s waist – interpreted to mean at a level below the crest of the ilium, so as to expose either skin or garment underneath – at any time.

800px-Wildwood_boardwalk_Family_Fun_Night_parade_at_Wildwood_AvenueA similar ordinance from Riviera Beach, Florida, passed by voter referendum, was quickly found unconstitutional by a judge as violating the constitutional liberty interests of those wearing the fashion.  In Flint, Michigan, a law enforcement memo instructing officers to arrest those who were “sagging” prompted a response from the ACLU and a speedy resolution.  

Requiring shirts, especially for men, is similarly unconstitutional.  In the 1980s, an ordinance from Florida’s  Palm Beach that mandated shirts was challenged by a male attorney who had been jogging topless.  In DeWeese v. Town of Palm Beach, 812 F.2d 1365 (11th Cir. 1987), a federal appellate court found that the town did not have a legitimate interest in regulating “the dress of its citizens at large,” as encompassed by its stated purposes of maintaining the quality of life and unique character of Palm Beach. Further, “prohibiting male joggers from appearing in public without a shirt” was irrational, and any justification was beyond the court’s “imagination.” 

Such findings of unconstitutionality are not new.  In a 1937 case, People v. O’Gorman, 274 N.Y. 284, 8 N.E.2d 862 (1937),  New York’s highest court struck down a Yonkers ordinance that prohibited any person over the age of 16 from appearing in public “in a bathing costume” or “in other than customary street attire.”   The defendants included a woman who wore “white sandals, no stockings, yellow short pants and a colored halter, with a yellow jacket over it and no hat”  and a man who “had on white sneakers, white anklets, short socks, yellow trunks, short pants, a blue polo shirt, brown and white belt, no hat.”  Maybe they looked “foolish” to their contemporaries, but as the court declared, the “Constitution still leaves some opportunity for people to be foolish if they so desire.”  

What we wear on public streets – – – including boardwalks – – – cannot be legislated unless it crosses the line of exposure of traditional “private parts” such as the genitals, or in most cases, women’s breasts.  A boardwalk is not a school or even a privately owned restaurant, places in which more leeway is allowed, although there are still constraints.  Otherwise, state laws could mandate everyone wear green headbands on Thursdays or Congress might even be able to proclaim seersucker Thursdays in the summer.   The boardwalk will just have to remain a dress-code free zone.

Confederate Flag Attire and School Dress Codes

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HERITAGE NOT HATE.  That was the slogan accompanying the Confederate flag reportedly worn  by students at Nixa High School, in Nixa, Missouri to a Board of Education meeting.  The students were protesting the school dress code provision:  “Clothing with racially inflammatory or verbally harassing material such as Confederate flags or swastikas shall not be worn.” One parent said the shirts were about “Dukes of Hazzard-style stuff” rather than “hate crimes,” while two students spoke about racially-motivated bullying at the school.

The board retained the ban.

Confederate_Third_National_Flag_-_CanceledMany courts have ruled on the constitutionality of school dress codes banning confederate flag attire. The Fourth Circuit recently ruled on the constitutionality of school bans of clothing depicting the Confederate flag in Hardwick v. Heyward. In that case, a student repeatedly wore various shirts depicting the Confederate flag, including one depicting the flag flying on the South Carolina capitol grounds. Her South Carolina school banned student dress that could “cause disruption,” interpreted to include images of the Confederate flag, and she was disciplined for violating the dress code. The student and her parents sued, claiming violations of her First Amendment rights to free speech and expression, and her Fourteenth Amendment rights to due process (for an overbroad and vague dress code) and equal protection (banning Confederate flag shirts but not other “racially themed” shirts).

The court applied the Tinker substantial disruption standard in upholding the ban, as have other circuits faced with the issue in recent years. The court looked at evidence of racial tension in the school, including past incidents involving depictions of the Confederate flag and during the 2000 South Carolina debate about the flag displayed on its capitol dome, and concluded that “school officials could predict that the Confederate flag would cause a disruption.” It further ruled that the ban was not overbroad or vague and, because it found the dress code to be viewpoint neutral on its face and its enforcement to be viewpoint neutral, it found no violation of equal protection.

 

[image via]

Sociopathic Flip-Flops

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How do sociopaths dress?  Inappropriately?

That’s the implicit argument in a pseudonymous article by M.E. Thomas published in Psychology Today, “Confessions of a Sociopath,” adapted from her book by the same name.

To be sure, Thomas also implicitly argues that sociopaths make the best attorneys – – – and law professors – – – but dressing the part is not as easy as it might seem.  Thomas writes that when she at a law firm, supervised by a senior associated named “Jane,” Thomas exploited Jane’s insecurities.  Appropriating the usual “dress for success” model, Jane is described as putting “much effort into dressing appropriately,” although M.E. Thomas also describes Jane’s “pale skin mottled with age, poor diet, and middling hygiene”  as “evidence of a lifetime spent outside the social elite.”

Thomas contrasts herself: “I wore flip-flops and T-shirts at every semi-reasonable opportunity.”

800px-Woman_wearing_red_flip_flops

Readers are to believe, it seems, that Thomas’s failure to dress for success is yet another manifestation of her manipulative and sociopathic personality.

Yet we should be wary of generalizing personality defects or even traits from preferences in attire.  Employers have long penalized workers, especially women, for their failures to “dress professionally” and have ascribed pathologies to employees’ failure to conform.  Flip-flops, even at a “semi-reasonable opportunity,” may not mean anything at all.

[image via]