Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day.

I’m Pam Karlan, along with Rich Ford. We’re back after taking some time away, so don’t forget to subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they’re available.

You know, the news cycles today are, incredibly fast, almost even faster than fashion cycles and today, we’re actually going to have a discussion between Rich and me that starts with the fact that Rich is the foremost expert in the legal academy on what he calls dress codes. And he has a fantastic book about this called ‘Dress Codes, How the Laws of Fashion Made History’.

And today we’re seeing one example of that history out there, which is the Senate, and you know, sometimes when you’re talking about political candidates, they’re for something, and then they’re against it, and then they’re for it again. We saw that recently with dress codes in the U. S. Senate. So Rich, can you tell us a little bit about what went on?

Rich Ford: Yes, well, in response to John Fetterman and his penchant for wearing hoodie sweatshirts and cargo shorts, Chuck Schumer announced a couple weeks ago that the Senate would eliminate its dress code. Now, the dress code was never written down, but it was an instruction that the sergeant at arms would enforce a dress code that required, you know, suits and ties, appropriate attire on the floor of the Senate.

And Chuck Schumer announced that he would instruct the sergeant at arms no longer to do this. When that announcement was made, 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, as you say, the 1st time before, and then I was against it, but I was against it before I was for it. They have decided now to reinstitute a dress code. And in fact, for the 1st time, a written dress code specifying what appropriate attire is on the floor of the U. S. Senate.

Karlan: So, one of the things that interests me is in your book, you actually do talk a little bit about the Congressional Dress Code in conjunction with Kyrsten Sinema, the senator from Arizona. And that was a discussion, if I recall it correctly, that’s about sort of how wide the shoulder straps should be on a woman’s dress.

Ford: Well, bare shoulders. So, there had been a norm that women would, that it was inappropriate to appear on the floor of Congress in anything that showed the shoulders, and Kyrsten Sinema was one of the first to resist this rule.

You know, as many of our listeners may know, Kyrsten Sinema is kind of a fashion plate. She’s known for her, somewhat unusual clothing and, at that time, the, again, informal but widely understood dress code forbade having the shoulders bare, and people pushed back against it as sexist. You know, it’s hot in the summer, a professional outfit for a woman might include bare shoulders, and obviously these norms of professionalism were implemented by men at a time when the Senate was almost exclusively a boy’s club.

Karlan: Yeah, so the other governmental lawyers you talk about a little bit in the book are the Solicitor General’s office.

Ford: Hm-mm.

Karlan: And there’s a, you tell an interesting story there as well about the interaction of dress codes, power, and sex.

Ford: Yes.

Karlan: In the sense of like male, female. I don’t mean in the sense of people having sex on them.

Ford: Right. No, no, no. yes, that’s right. So, the norm for the Solicitor General had been, you know, for decades, over a century, really, to be to wear a morning suit and a morning suit is, you know, tails and a very formal jacket. It’s the kind of clothing that was conventional formal masculine attire in a much earlier historical period.

And so this came about at a time when the Supreme Court expected lawyers of anyone appearing before the court to dress in a very formal manner. There was an early case in which one Supreme Court justice, you threw someone out who was wearing street clothes. you know, who is this person who dares get into the court wearing street clothes?

And, the person, I believe it was a U. S. Senator, was, you know, not admitted to the court and had to run home and change. But. In more recent years, of course, this became formalized as a norm that the Solicitor General in appearing in front of the Supreme Court would wear a mourning suit. well, that’s masculine attire and it’s already somewhat awkward or at least anachronistic even for men.

But for a woman, what would the appropriate attire be? And 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 and hand wringing about, well, what will she wear? You know, will she wear a morning suit, but that’s masculine attire.

But if she wears, if she doesn’t wear the traditional morning suit, she may be subject to censure by the court. Should she wear traditionally feminine attire from the historical period when the morning suit was traditionally masculine attire? But then, one of one of our former graduates, Dahlia Lithwick, in Slate Magazine wrote, well, that would be like a cotillion gown, you know, Disney princess type cotillion gown, that would be traditional feminine attire. So, she can’t wear that.

So lots of hand wringing. 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.

Karlan: Yeah, and I want to ask you about one last government official before we turn to, the bigger issue that your book raises and the like, and that is Jim Jordan, who is the ranking Republican. I think he’s now the chairman of the Judiciary Committee in the House, and he never wears a suit jacket.

And I remember this from when I testified at the impeachment inquiry in the Judiciary Committee, they had the room because there were so many cameras in the room at about 50 degrees. I mean, I was freezing cold, and he was up on the dais just in shirt sleeves and a tie. What do you make of this?

Ford: That’s really interesting. I mean, one thing, maybe he just gets warm.

Karlan: He did used to be a wrestling coach; I should add that.

Ford: Ah, okay. So, it’s possible he just runs warm. But I suspect that there is a message being sent here. And that’s that, you know, when you get down to work, you take off your jacket. You roll up your sleeves, is the old cliche. But taking off the jacket may seem to suggest, you know, we’re really getting down to business here. And convey a kind of hard work can do attitude. And in that sense, maybe not all that different than what John Fetterman is doing, which is conveying a kind of, lack of concern about sartorial formalities. You know, I’m here to work. Who cares what I’m wearing?

Karlan: Yeah, you talk about that at the end of your book when you are talking about the tech bros.

Ford: Okay.

Karlan: In a couple of different ways, that the choice of clothes takes too long. And so you should just wear the same thing every day, or, I’m too busy thinking great thoughts to put on clean clothes or whatever.

Ford: Yeah, absolutely. I mean, Mark Zuckerberg actually said this, we get, when asked why he wears a gray t shirt every day.

He said, “Taking time, figuring out what you’re going to wear, what you’re going to eat for breakfast, dissipates your energy. And I wouldn’t be doing my job as the CEO of Facebook if I spent time on that. So that’s my reason for wearing a gray t shirt every day.” So, you know, he really did combine this message with what seems like a thoughtless wardrobe choice.

Karlan: Yeah, although his great t shirt, I believe, is from Bruno Cuccinelli.

Ford: I did hear it was from Brunello Cuccinelli, where you can’t buy anything for under $500, so.

Karlan: Yeah, and I will say one of my favorite things about your book is the autobiographical pieces that kind of run as a through line through the book about, you know, not having to think about your clothes, thinking about your clothes, your time being the semi finalist, but not the finalist for Esquire’s Best Dressed Real Man. Was that what it was called?

Ford: Yes, yeah, they called it the Best Dressed Real Man concert, and we had just had our daughter, my second child. And so, we’re exhausted and you know, don’t have time to think about anything like a glamorous wardrobe, but certainly we couldn’t go out. But I thought it would be fun as a relief to, you know, enter this contest and like, hey, I’ll be Esquire’s Desperate Real Man. And I wound up getting further in the contest than I thought I would have, although I didn’t win, and I didn’t make the finals.

Karlan: Well, you are, I think, probably the best dressed professor at Stanford Law School.

Ford: Thank you.

Karlan: Which, as you say at several points in the book, is like best in breed, but not necessarily best in show and so on. And, and you talk at a number of points in the book about the laws of fashion, but in reality, there actually have been long periods of time where the laws of fashion were literal laws.

Ford: Yes, absolutely. In the late Middle Ages and the Renaissance, sumptuary laws were quite common throughout Europe. You had, in England, you had things called the Acts of Apparel, and they were passed and regulated what people could wear in a great deal of detail.

So it was more than just, you know, only the king can wear crimson velvet or ermine fur on his collar, although there were things like that, but it was quite a few gradations, you know, only someone above the rank of the knight of the guard or may wear a certain kind of silk. And all the way down to the peasantry who were regulated according to how much fabric they could use in their clothing.

And one of the interesting things I found in this is that a lot of scholars of this period thought, well, you know, these laws may have been on the books, but they were not taken seriously. But at least in Tudor era England, they were taken seriously. People were arrested. They had their clothing confiscated. They were made a public example and marched through the streets with their clothing cut and trailing behind them. So it was taken quite seriously. And this was true all over Europe.

Karlan: So that, you know, you identify a bunch of different functions that clothing played. In denominating various parts of society. So, there’s the status issue, which I think the sumptuary laws that you’re talking about are really about status. And at the other end, you tell the story of how in order to identify prostitutes, they had to wear special clothes. And then there was this interesting through line in the book about earrings. So, the first time you talk about earrings, you’re talking about them as the ghettoization of Jews in medieval Italy, right?

Ford: Yes, in medieval and renaissance era Italy, there were many decrees about what people could wear. So, some of them were restricting Christian women from wearing vanities. You know, this is the same period of time where you had the bonfires and the vanities and things like this.

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 and, you know, kind of to let everyone know that they were Jewish. And not only did those laws serve to signify their faith, or but also they were tied into images of, you know, corruption and indulgence and again, the vanity.

So, you know, 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. Yeah,

Karlan: And then towards the end of the book you have a discussion of hoop earrings, which is not about a law, but it’s again about this identification of in groups and out groups.

Ford: Right. It was really interesting that college students in California had settled on the idea that hoop earrings, big hoop earrings were kind of the cultural property of African American and Latina women. So there was a, someone put up on a wall, you know, white girl take off your [00:14:00] hoops. And when people, you know, some people just scratched their heads, they didn’t know what this meant. And then 1 of the students wrote kind of a little manifesto saying, you know, this is our culture. And when white people adopt it’s, you know, they turned it into fashion, and they turned it into something that’s cute. But, you know, for us, it has cultural significance. And in addition, you know, we’re treated badly. 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 and it’s cute. So, there was a whole conversation around race and, and belonging and class hierarchy built into this.

Karlan: Yeah, so that’s the, those are examples of the status issue that you talk about in the book, which is fascinating.

Then 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.

Ford: Yes, the great masculine renunciation. So, the background here is that during the Middle Ages and the Renaissance, power was expressed through clothing. That’s why you had these sumptuary laws, and but, and the way it was expressed was through magnificence and opulence you know, if you look at a portrait, a Holbein portrait of Henry VIII, for instance, you know, there’s brocade, there’s jewelry, there are these big ceremonial swords.

[00:15:30] You know, famous portraits of, let’s say, Louis XIV with a big wig and high heeled shoes with red heels; it’s about flamboyance. But in the 1700s and beginning in England, you begin to have a move away from this, and men begin to renounce all of this. The jewelry, the brocade, the makeup, the powdered wigs, all of that go away and over a relatively short period of time, you know, 30 to 50 years, elite masculine attire becomes streamlined. Sober, gray suits, you know, Beau Brummell, who was known as a big dandy in fact, at the time, was known for his understatement. You know, he didn’t wear all of these flamboyant things, and that became the new masculine uniform.

It was really kind of the precursor to the business suit that we’re now debating about on the floor of the U. S. Senate, but that began with the renunciation of all this finery and that the flamboyance and the decorativeness was reserved for women. And so, what we’re now so familiar with the idea that women are fashion plates that women wear fancy flamboyant clothing, whereas men are more practical, that began relatively recently in history, it began in the 1700s along with the Enlightenment and along with the change in social and political norms.

Karlan: In the first part of our discussion, Rich, we were talking about the history a lot, and 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 actually burned at the stake was her decision to wear men’s clothes while leading the French against the English during the war. So, I thought we might talk a little bit about probably the leading case on dress codes, it’s a case called Jespersen v. Harrah’s. Can you tell us a little bit about that case and what it tells us about dress codes?

Ford: Yes, and what it tells us is that dress has been a way of regulating gender identity for centuries, and it’s still true today. So Darlene Jespersen was a bartender at a Harrah’s restaurant in Reno, Nevada, and she’d worked there for many years. Everything was fine. It, you know, did, by all accounts, a good job. But the new management decided that they wanted to… change their dress code and promote a more polished image or a sexier image.

And so they had all the employees done over by a image consultant, you know, 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 and she objected.

She said, I feel ridiculous. I feel like a clown wearing this and I feel it’s going to undermine my ability to do my job because if I’m behind the bar and I look like a sex object, I’m gonna find it harder to cut off drunks who’ve had too many drinks and, you know have authority over the bar. So, eventually she sued Harrah’s for sex discrimination.

And the Title VII claim, it’s 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. Only women do. So, the controversy involved whether or not the requirements that were placed on men, because men did have also have a personal best, but it obviously was different, it’s gendered. 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, you know, a different dress code for men and for women. Now, that in and of itself had been established law for decades, so it wasn’t surprising that they could have a different dress code. But this was fairly stark, the degree to which women had to kind of doll up and conform to what arguably was a sexualized dress code was more dramatic than what most employers require, and it, but at any rate, she lost her lawsuit and the dress code stood.

Karlan: So, you know, that case is still cited today as the leading case on these issues and its decades old and gender roles, and the law have changed in a bunch of ways since then. What do you think is going to happen when, you know, 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.

Ford: Yeah.

Karlan: And Amy Stevens wanted to wear the clothes that were required for women who worked for this funeral home, and the employer takes the position, she’s not a woman, she’s a man. How do you think those cases are going to get resolved?

Ford: 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.

I think it’s going to be really tough because the old, now some people have said Perhaps the law will be that the employer can have a men’s dress code and a women’s dress code, but they have to allow the employee to choose which one, or they have to allow the employee to opt for the dress code that conforms to their gender identity, not their birth sex.

But I think that’s going to be tricky to maintain because you have a whole group of people who are nonbinary. So, the whole point for them is, you know, no, I’m neither male nor female. It’s not, I don’t want to choose between these 2. And they would have a very similar argument to say that, you know, their identity is undermined if they have to choose an obviously masculine or an obviously feminine dress code.

And at that point, I think it’s going to be tricky for employers to continue to make the case that these gender dress codes, you know, are consistent with equal opportunity for all of their employees.

Karlan: Yeah, so I want to turn now also, we’ve been talking about sex, to race and dress codes. And the one of the examples you give in the book, which is fascinating, is a woman named Chastity Jones, who she wore her hair in dreadlocks in violation of a dress code that the employer put in place that, it’s just kind of mind-boggling case,

Ford: Right. No, it really is because so there have been there been precedent that an employer could impose a dress code that forbade certain types of hairstyles, even when those hairstyles were predominantly worn by members of a particular race. So, an older case involving airlines Renee Rogers versus.

Karlan: Some airline or another?

Ford: Well, some, yes. Yes. I don’t want to cite the wrong airline, but at any rate, wore an all-braided hairstyle and the airlines had lots and lots of rules, around how you can wear your hair. This was arguably just one of many. And the court said, you can have this rule, despite the fact that it’s usually African American women who wear this hairstyle.

Now, this was a public facing position and the airlines had a lot of regulations about appearance. So, you could make the argument that the dress code was justified. I, I’m not sure I would make that argument today, but that’s the argument that the court accepted at the time. But as you say, in this case, this was a telephone call center where no one would ever see the employee in question.

And not only that, but 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, I think by the time that case came out, a lot of people were flabbergasted that the court would still say this dress code is acceptable.

And, you know, clearly the balance of equities weighs so heavily in favor of the employee who’s, you know, in a position at a telephone call center where no one will ever see her. And the rule in question would require her to really cut off all her hair. Because of the way dreads are, you know, work, you can’t just take them out and put them back in.

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

Ford: Absolutely. And I think that’s something that the legal precedent hasn’t recognized. You know, 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, and even in the early case, the airline case that I talked about, that dress code wouldn’t have required a permanent physical change because they had other options for the particular employee, but in the dreadlocks case, and again, given the way dreadlocks work, it would have really required her to cut her hair off.

Karlan: Yeah, I, and, you know, there are also such interesting issues. I’m not sure that we’ll have time to get into them. Maybe we should have a second show about the book, because the other thing that you talk about a lot of are the exemptions from various dress codes in the United States.so the woman who wants to wear a hijab while working at Abercrombie and Fitch, or, you know, the Sikh who wants to wear a turban or the like, and then the flip side in France, and I think maybe we should have a whole show about the kind of international stuff with France banning the hijab recently for its Olympic athletes coming up in 2024 with the Paris Olympics.

Ford: Oh, yes, they do. There’s a lot to talk about with respect to the different way that The United States and many European countries, but, you know, France foremost among them, thinks about religious liberty and the relationship between church and state that’s led to all of these headscarf bans in France. And, you know, the Olympics are just the latest one, but in the past, they had banned headscarves for public employees and for public school children students in public schools. So, there’s a lot to talk about with respect to that as well.

Karlan: So, I want to thank you so much, Rich, for talking about your book, Dress Codes, How the Laws of Fashion Made History. I recommend the book highly to everyone. It is just, it’s a gripping read, and the pictures are great as well. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. It’ll help us to improve the show and get the word out that we’re now back. I’m Pam Karlan, along with Rich Ford. See you next time.