SLS’s Richard Thompson Ford Discusses ‘Dress Codes’ in History and Today

On the Stanford Legal podcast he co-hosts, Richard Thompson Ford, the George E. Osborne Professor of Law at Stanford Law School (SLS), recently exchanged his interviewer hat for that of the interviewee. Ford and his podcast co-host Pamela Karlan, the Kenneth and Harle Montgomery Professor of Public Interest Law, discussed “From Sumptuary Laws to Senate Suits: Dress Codes in History and Today.” The conversation was inspired by Ford’s book Dress Codes: How the Laws of Fashion Made History, a legal history of the rules and laws that influence what we wear.

SLS Relaunches ‘Stanford Legal’ Podcast
SLS Professors Rich Ford and Pam Karlan, co-hosts of the Stanford Legal podcast

Ford is not only “the foremost expert in the legal academy on dress codes,” as Karlan says in the interview, he is “probably the best dressed professor at Stanford Law School.”

From the recent Senate dress code controversy to landmark legal cases, the wide ranging conversation explored the nuanced intersection of the law and fashion, gender identity, and cultural expression. The following is an edited excerpt of the full interview, which can be found here.

Let’s start with the Senate and the recent debate over dress codes there.  

In response to John Fetterman (a Pennsylvania Democrat) and his penchant for wearing hoodie sweatshirts and cargo shorts, Majority Leader Chuck Schumer announced that the Senate would eliminate its dress code. Note the dress code was never written down, but the sergeant at arms was instructed to enforce a dress code that required suits and ties, and otherwise appropriate attire on the floor of the Senate. Chuck Schumer announced that he would instruct the sergeant at arms no longer to do this. There was a huge uproar, and to some extent the uproar was partisan. It was a group of Republicans that signed a letter decrying the end of the dress code and saying that it debased the dignity of the Senate to eliminate the dress code. But there was also a sense that there was bipartisan concern about eliminating the dress code. So, this went on for several days as people discussed the pros and cons of it. And then, in an interesting about face, the Senate voted unanimously in favor of a resolution to reinstitute a dress code. And in fact, for the first time, we now have a written dress code specifying what appropriate attire is on the floor of the U.S. Senate.

What about the fashion norms in the Solicitor General’s office?

The norm for the Solicitor General had been, for over a century, to wear a morning suit— tails and a very formal jacket. It’s the kind of clothing that was conventional, formal masculine attire in a much earlier historical period, a time when the Supreme Court expected lawyers or anyone appearing before the Court to dress in a very formal manner. But for a woman, what would the appropriate attire be? Obviously this norm was set at a time when no one contemplated a woman ever being Solicitor General. So when Elena Kagan became the first female solicitor general, there was lots of debate about what she would wear. Should she wear traditionally feminine attire from the historical period when the morning suit was traditionally masculine attire? One of our SLS graduates, Dahlia Lithwick, wrote in Slate magazine that traditional feminine attire from that era would be something along the lines of a cotillion gown, a Disney princess-type gown. Of course, Elena Kagan worked it out and wound up wearing a more traditional business suit, but for a long period of time, there was a lot of consternation. And I think it reflected the concern that professional attire is often, by default, masculine attire. And so women have a much harder time knowing what the default clothing should be.

SLS’s Richard Thompson Ford Discusses ‘Dress Codes’ in History and Today

As you write about in your book, there have been long periods of time where the ‘laws of fashion’ were literal laws.

Yes, absolutely. In the late Middle Ages and the Renaissance, sumptuary laws—which restricted extravagance in food, drink, dress, and so forth—were quite common throughout Europe. In England, you had the “Acts of Apparel”, which regulated what people could wear in a great deal of detail. It was more than, “only the king can wear crimson velvet or ermine fur on his collar,” although there were rules like that. There were quite a few gradations. Only someone “above the rank of the knight of the garter” could wear a certain kind of silk, for example, all the way down to the peasantry who were regulated according to how much fabric they could use in their clothing. At least in Tudor-era England, these laws were taken seriously. People were arrested. They had their clothing confiscated. They were made a public example of and marched through the streets with their clothing cut and trailing behind them. 

You identify a number of different functions that clothing played in denominating various parts of society. So there’s the status issue—and I think the sumptuary laws that you’re talking about are really about status. You also explain how in order for people to identify prostitutes, they had to wear special clothes. And then there is this interesting through line in the book about earrings. The first time you talk about earrings, you’re talking about them in the context of the ghettoization of Jews in medieval Italy, right?

Yes, in Medieval and Renaissance-era Italy, there were many decrees about what people could wear. Some of these restricted Christian women from wearing “vanities.” But at the same time, there were laws that required, in some places, Jewish women to wear earrings to set them off from Christian women, to let everyone know they were Jewish. Not only did those laws serve to signify their faith, they were tied into notions of corruption and indulgence and again, vanity. So  it wasn’t an accident that the Jewish women were required to wear conspicuous jewelry because that was something that was tying them to “sin” in the eyes of the church. It had an important symbolic function there as well.  

Toward the end of the book, you have a discussion about hoop earrings, which is not about a law, but about identification with certain groups.

It was really interesting that college students in California had settled on the idea that big hoop earrings were kind of the cultural property of African American and Latina women. Someone wrote up on a wall, something to the effect of, “White girl, take off your hoops.” Some people just scratched their heads; they didn’t know what this meant. And then one of the students wrote a kind of manifesto saying, “You know, this is our culture. And when white people adopt it, it is turned into fashion, into something that’s cute. But for us, it has cultural significance. And in addition, we’re treated badly when we wear it, so there’s a double standard. So, we wear this kind of clothing, and we get treated like it’s tacky or it’s ghetto, but then the white sorority girls wear it, it is ‘cute.’” So, there was a whole conversation around race and belonging and class hierarchy built into this.

Those examples of the status issues are so fascinating. You have the issue of power, and then you also have this issue of clothes as reinforcing and even sometimes creating sex roles for people. I think the “great male renunciation” is something I did not know anything about until I read your book and it’s just fascinating.

Richard Thompson Ford

Yes, the great masculine renunciation. During the Middle Ages and the Renaissance, power was expressed through clothing. That’s why you had these sumptuary laws, and the way power was expressed was through magnificence and opulence: brocade, jewelry, big ceremonial swords. Think of the famous portraits of, say, Louis XIV with a big wig and high-heeled shoes with red heels. It was about flamboyance. But in the 1700s and beginning in England, men began to renounce all of this. The jewelry, the brocade, the makeup, the powdered wigs, all of that goes away over a relatively short period of time, 30 to 50 years. Elite masculine attire becomes streamlined. Sober gray suits, for example. It was really the precursor to the business suit that we’re now debating about on the floor of the U.S. Senate. Flamboyance and decorativeness became reserved for women. This idea that we are now so familiar with—that women are fashion plates that women wear fancy flamboyant clothing, whereas men are more practical— that actually began relatively recently in history, in the 1700s along with the Enlightenment and along with other changes in social and political norms.

Now I want to turn to some of the contemporary legal issues. They’re not just contemporary, though, because as you point out, the thing that got Joan of Arc burned at the stake was her decision to wear men’s clothes while leading the French against the English during the war. I thought we might talk a little bit about what is probably the leading case on dress codes, Jespersen v. Harrah’s. Can you tell us a little bit about that case and what it tells us about dress codes?

What it tells us is that dress has been a way of regulating gender identity for centuries, and it’s still true today. Darlene Jespersen was a bartender at a Harrah’s restaurant in Reno, Nevada, and she’d worked there for many years. By all accounts, she was good at her job. But the new management decided that they wanted to change their dress code and promote a more polished image, or a sexier image.

They had all the employees done over by an image consultant: makeup, hair, everything. And then they took a photograph and they said, “This is your personal best, and we expect you to come to work looking like this every day.” So, Darlene Jespersen, who had never worn makeup, never teased her hair, was then required to wear full makeup and teased hair as a condition of employment. She objected, saying she felt it would undermine her ability to do her job. She sued Harrah’s for sex discrimination and the Title VII claim is quite straightforward: You’re requiring different standards for men and women. Men don’t have to wear makeup and tease their hair or any of this. The question was whether that was consistent with the requirements of Title VII to provide equal employment opportunity, and surprisingly, the court said, yes. They said that it was acceptable for Harrah’s to have these different dress codes for men and for women. The legality of gendered dress codes had been established law for decades, so it wasn’t surprising that they could have a different dress code. But the difference here was fairly stark, the degree to which women had to doll up and conform to what arguably was a sexualized stereotype. It was more dramatic than what most employers require, but at any rate she lost her lawsuit and the dress code stood.

I think about, for example, Amy Stevens, who was the transgender woman in the funeral homes case that went to the Supreme Court a couple of years ago, where the court held you couldn’t discriminate against someone for being transgender. Amy Stevens wanted to wear the clothes that were required for women who worked for this funeral home, and the employer takes the position that she’s not a woman. How do you think those cases are going to get resolved?

I think it’s going to be increasingly hard to maintain the idea that sex-specific dress codes are consistent with Title VII given the rise of recognition of transgender people and people who are gender non-binary or gender fluid.  

Tell us about Chastity Jones, who wore her hair in dreadlocks in violation of a dress code that her employer put in place.

Before her case, there has been precedent, involving an airline, that an employer could impose a dress code that forbade certain types of hairstyles, like an all-braided hairstyle, even when those hairstyles were predominantly worn by members of a particular race. But that was primarily in the context of public-facing positions, where the employer claimed that it needed to be in control of a business image. I’m not sure you could make that argument today, but that’s the argument that the court accepted at the time, in the 1980s. But in the later case of Chastity Jones, she was in a call center where no one would ever see the hairstyle. Also, our norms in terms of the recognition of the importance of hair for African American women in particular have changed a lot since the 1980s, and so by the time this case came out, a lot of people were flabbergasted that the court would still say this dress code is acceptable.

Clearly the balance of equities should weigh heavily in favor of the employee who’s in a position at a telephone call center where no one will ever see her. And the rule in question would really require her to cut off most of her hair because you can’t just take locks out and put them back in.

That’s another point you make in the book: that it’s one thing to have a dress requirement for when somebody’s on the job, but it’s quite another to have a dress code requirement that essentially governs them 24 hours a day, seven days a week.

Absolutely. And I think that’s something that the legal precedent hasn’t recognized. They’ve simply said a dress code is just another condition of employment. It’s like showing up on time. And for the most part, the employer is entitled to have whatever dress code they like, provided it’s not overtly discriminatory or demeaning. But there’s a real balance in the equities when you’re talking about a dress code that would require a permanent physical change.

Listen to the Stanford Legal Podcast with Richard Thompson Ford

Richard Thompson Ford is the George E. Osborne Professor of Law at Stanford Law School. His latest book, Dress Codes: How the Laws of Fashion Made History received highly positive reviews in publications such as The New York Times, Washington Post, Wall Street Journal, Fortune, Slate, The Guardian and The South China Press. It has been translated into five languages and is the inspiration for an Editor’s Choice Ted Talk for 2021.