The US is an excellent and scary country.

I apologize in advance to the non law types who are going to have little idea of what this next bit means.

Title VII applies to private actors through the commerce clause, not Amendment XIV (or the other civil war amendments). That's why there's lots of stuff in Title VII about the act applying to business of more than thus and such number employees, etc. Most of congressional and court made civil rights laws get at private actors via commerce clause and have nothing or little to do with the civil war amendments because of the state actor problem.

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::mooooo::::

I think the point is that either of these is arbitrary. Social/cultural norms about dress and appearance are arbitrary. The person with an eyebrow ring and the person with a tit hanging out and a person that looks like they are right out of a LL bean catalog are probably all equally qualified to wait on someone at costco. So it's not really clear why someone with a tit hanging out is okay to discriminate against but not someone with an eyebrow piercing. The only way it makes sense is if we make the assumption that's behind much of the cultural code of business dressing - i.e. someone who looks "normal" is going to do a good job whereas someone who can't get his/her shit together to look "normal" is less likely to do a good job.

Our problem here is that "normal" needs to be enlarged to include people with eyebrow rings but not enlarged so much as to include people wearing only thongs and pasties. Right?

But in any event, there is nothing inherently wrong with "discrimination" per se. You would "discriminate" against the person with boobs hanging out but not the person with the eyebrow ring. Saying it's bad because it is "discrimination" or "judging" is a bit simplistic. If "discrimination" is bad per se, then we are in big trouble. After all, don't movie theaters "discriminate" against people who can't pay for movie tickets? And don't paid websites like SG "discriminate" against people who can't pay the monthly fee and/or express views with which the owners of the site don't agree? Yes, yes, a thousand times yes. There is nothing wrong with "discrimination" or "judging" per se.

But Costco wasn't judging her based on her eyebrow piercing. They weren't saying "We don't want people who would pierce their eyebrows working in this store." They probably couldn't care less if your eyebrow was pierced. It's the displaying of said piercing to the customers that they have a problem with. If they were judging her based on her piercing, would they have hired her in the first place?

First off, I'd like to thank everyone for all their insightful and reasoned comments regarding my brief news submission. It was the first one I dared to write, and it's great to read so much legal and non-legal discussion in response. I look forward to submitting more--you guys (I mean that in the gender-neutral sense--it sounds better than 'folks' and I'm from NorCal, so I can't legitimately get away with "y'all" are awesome!

OK, onto the meat:

A key point here is that, at least under the rules articulated in a number of circuits, yes, a company could lawfully fire a rastaman (rastamon?) from a front-counter position, or could refuse to hire him, for refusing to cut his hair, without violating Title VII, so long as the short hair policy was facially neutral as to religion/race/national origin/sex (i.e., "no large necklaces" would be ok, but "no crucifixes" would not) and not merely a pretext for intentional discrimination of a protected class (which the plaintiff would ultimately have the burden of proving). The courts in these circuits have repeatedly held that dress codes requiring certain kinds of grooming, including being clean-shaven, are bona fide occupational qualifications for employees who deal with the public (and this is apart from opinions upholding such policies on safety grounds, as with tight-fitting gas masks) and, as such, any proposed accommodations which seek total exemption are essentially per se an undue hardship and thus unreasonable.

The Cloutier court similarly cites Daniels v. City of Arlington, 246 F.3d 500 (5th Cir. 2001), as precedence for upholding across-the-board bans on visible jewelry.

On the other hand, you have the Southwest Airlines case and similar cases holding that various appearance requirements (tied to sex) are not bona fide occupational requirements, because they do not get to the essence of the business (in the case of Southwest, delivering snacks and pillows and monitoring the passenger cabin), and the undecided Hooters case.

Is the distinction between dress and grooming on the one hand and skinniness and short skirts on the other an arbitrary one? Quite possibly, but courts, of necessity, draw lines like this all the time. I will leave the Critical Theory analysis to someone braver than I.

I have intentionally left out most citations in the above because (1) I no longer have Lexis access at home to make sure my memory is not fucked, (2) I'm lazy, and (3) I suspect at least a few of you folks are neither current nor aspiring members of the Profession and have little interest in wading through them (SG needs footnotes, dammit!). But if anyone wants to C&S this, by all means, go to town. Nerd.

I remember a story about a woman from Africa who worked for Disney. She had legitimate religious reason to wear a specific religious piece of jewlery for part of the year, an earring of some sort. I don't remember the specifics beyond that, but she was fired for not complying with Disney's down home traditional family values dress code. I'm not certain if she tried to sue, but she certainly should have.

I'm not a member of the Church of Body Mod myself, but I know people who are. Perhaps people should look at their website and see what its really about before caling it ridiculous. It is a nondenominational church. It's not so much a religion in a traditional sense as it is a kind of organization to help understand one's self.

For those who mentioned that she should have looked at the dresscode, yes, there is that. But for SOME people, I stress some, because, I think in this case she was ust using the church as an excuse, but in SOME cases, piercings are an identity statement in the sameway we associate other visual statements with people's religions. Piercings and tattoos don't have to be something "cool." For some, they statements of accomplishment, rights of passage, etc, and are now different than say a muslim woman wearing the head scarf thing in the workplace (please excuse my lack of Islamic knowledge here). Saying Muslim women would hav to dress "normal" is the SAME discrimination. And SOMEbody needs to make a stand. So maybe not THIS girl in this CASE. But it needs public attention. If Rosa Parks never started the incident on the bus, where would segragation be, etc, ect.

I would hope people can agree that piercings and tattoos don't have anything to do with a person's ability to do a job or even ACT "professional" in front of a client.

....and if you have body mods, don't expect to keep a job that dosn't allow them.

Doesn't there have to be some sort of worship involved? Where's the religion here? Their self-description reads to me like a unitarian universalist FCA for people into body modification. A club does not a religion make.

If I joined an organization for, say, Catholics that required me to wear the official t-shirt every Wednesday.. and I showed up for work in that t-shirt every Wednesday for weeks and weeks against dress code.. was warned.. and fired for insubordination and then I sued them.. there wouldn't even be a thoughtful discussion on it. People would laugh, roll their eyes, call me stupid, and all this crap... because I'd deserve it for being, well, ridiculous. I like tattoos and piercings and all.. but this girl probably just needs a quick buck and/or a little attention.

Edit. Funny enough, where I work.. you can have dreads, visible tattoos, and piercings - even facial piercings - so long as it's not something completely distracting or would obviously go against community standards. (i.e. no massive holes with a chain connecting one piercing to another.. a large amount of facial piercings, etc.)

[Edited on Dec 15, 2004 by sarahg]

im gonna guess that she DIDNT wear her eyebrow ring to the interview. i know i dont wear my rings to them...but i do ask if theyre accepted.


edited for homonyms

[Edited on Dec 15, 2004 by MistressMissy]

Oh my god, the Homonyms are getting in on this, too!??! Where have all our traditional values gone?!

ya,weird and freakish,its based on this totally fucked up list of ruels called the Magna Carta writen by a bunch of English feudal lords

Unitarian Universalism is a recognised denomination, thank you.

eyebrow piercings are still considered 'extreme'? who knew?

seriously, though, people have been pushing this envelope for quite some time now. it's the people with more 'extreme' piercings that take the brunt of the 'heat'... and why something like a nose piercing isn't even looked twice at nowadays. try that in the 80's, or even most of the 90's.

costco, by employing her, would essentially be telling customers: 'hey, this person is working for us because they do a good job'... and any customer so bassackwards to think that people with piercings were miscreants might end up reconsidering.

however, by firing her, costco is assuming some people are going to have an issue with her. but in acting on this future assumption, it is they who are actually discriminating. it's like not hanging out with somebody because you're worried what others might think about her.

i realize we live in this silly capitalistic society that tends to forgive companies for acting in thier own best interest (despite the consequences), but seriously, people should be allowed to exert their own will.

clothing, let alone piercings, are deep rooted symbols of self. for many people, it's not about a fad, or a style, but about -self-. why do many companies (and schools) force employees to wear a uniform? it's an awful, dehumanizing practice to demand how someone visually displays themself.

as for 'she needs to follow their policies', she should get a job elsewhere: no. she needs to eat. she needs to pay rent. we shouldn't be defending the companies, we should be standing behind others like us. not everyone has a great choice of jobs.

as for 'she could have compromised': taking out a piercing every day is not compromise. it would be a daily reminder that you're not who and where you want to be.

but whatever, we're all heading for transmetropolitan land anyway, and i, for one, can't wait to get there.

[Edited on Dec 18, 2004 by ferret]