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Dress Codes, Discrimination, and a Free Society

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A restaurant and nightclub in Washington, D.C. changed its dress code earlier this year after a complaint that it engaged in discrimination against non-whites. The incident serves as a valuable example of the place of dress codes and the practice of discrimination in a free society.

Sneakers

It was not the night before Christmas, but it was the Saturday night before. A group of three friends was waiting for one more friend at the popular Washington, D.C., 14th Street establishment El Centro D.F. around 10:30 at night, about the time when the music is turned up and the restaurant transforms into a nightclub. There was no line to get in, as only a few people were there. The restaurant has no dress code, but the nightclub has a “no-sneakers” policy.

When Brian Gordon, a black man, arrived to meet his friends, he was denied entry because of the nightclub’s dress code. He then texted his friends to tell them that he wasn’t allowed in because of his shoes. Gordon was wearing white leather Converse high-tops. “They’re not like ratty, dirty sneakers,” he told the Washington Post. “They’re brand new, they’re leather. They were clean, fresh, white. It’s not like I showed up in five-year-old Chucks.” Gordon said that he doesn’t have an issue with the concept of a no-sneakers policy, “but if it’s not being applied universally, then it’s a problem.”

The problem is that there were white men in the nightclub who were wearing, you guessed it, sneakers. According to one of the friends in the group, Yesha Callahan — who wrote a widely shared article about the incident for The Root, where she is deputy managing editor — “Not only were the three white guys posted at the bar in sneakers, but there were also three other men on the dance floor wearing various styles of sneakers.” One guy was even wearing a pair of sneakers similar to the ones Gordon was. A bartender friend of the group was eventually able to get Gordon inside, but then the foursome left after deciding to have a drink at another establishment down the street, where they had no trouble getting in.

Following the backlash against the bouncer and the establishment, Ayyaz Rashid, managing partner of the Sandoval Restaurant Group that runs El Centro D.F., fired the bouncer who turned Gordon away and discontinued the “no-sneakers” policy. “The security in question has been relieved of his duties and will no longer be working at the venue. Furthermore, there will be no dress code applied anymore at all. Not to stop there, I am scheduling a training workshop for the rest of the team to make sure such incidents may never happen again,” said Rashid. “I am a person of color myself. So to hear that I would be enforcing such policies, it’s pretty personal to me.” Although the restaurant apologized to Gordon and invited him back, he says he won’t return. “I don’t really have any interest in returning to a restaurant that clearly doesn’t want me or anyone who looks like me,” he said.

It turns out that this was not an isolated incident.

Incidents and lawsuits

The year 2017 was a busy year for incidents and lawsuits concerning dress codes or discrimination. Here are just a few examples.

A Wisconsin high-school student’s senior picture was rejected for inclusion in the school yearbook because it was deemed “too inappropriate” because part of her bralette was visible.

A New Jersey high-school student claimed that she and many of her friends were accused of numerous violations during their four years in high school “for clothes that were nowhere near inappropriate.”

Georgia Blue, a Mississippi restaurant chain, was sued for failing to accommodate a server’s religious dress requirements. After being offered a job, a waitress learned of the eatery’s dress code requiring servers to wear blue jeans. Because the applicant — a devout Apostolic Pentecostal Christian — believed that women should wear only skirts or dresses, she notified her new employer and requested a religious accommodation to wear a blue skirt. After receiving no response, she reported to work in a denim skirt, only to be sent home for violating the company dress code. The restaurant denied her accommodation request and rescinded its job offer. The lawsuit alleges that the restaurant’s conduct violates Title VII of the Civil Rights Act of 1964, which requires that employers provide reasonable religious accommodations to employees.

An investigation by ProPublica and the New York Times found that dozens of the nation’s leading employers placed recruitment ads limited to particular age groups. At issue is whether the practice violates the federal Age Discrimination in Employment Act of 1967, which prohibits bias against people 40 or older in hiring or employment. A class-action complaint alleging age discrimination was filed in federal court in San Francisco on behalf of the Communications Workers of America, its members, and Facebook users 40 or older who may have been denied the chance to learn about job openings.

Seven black employees of the New York Fire Department filed a lawsuit in federal court in Manhattan alleging that “a broad pattern of racial discrimination” within the department caused them to be paid less than white counterparts or cost them chances at promotions. The lawsuit maintains that the percentage of black employees in higher-paying emergency medical services and civilian jobs is far less than in lower-paying jobs, black employees are paid lower salaries or wages than white employees with the same jobs, and black employees find it difficult to advance within the fire department.

Harvard University finally agreed to turn over years of confidential applicant and student records to the U.S. Justice Department after it opened an investigation into whether the university systematically discriminated against Asian- American applicants.

The EEOC filed a lawsuit in federal court in Tallahassee alleging that managers at Whataburger restaurants in Florida were instructed to hire “only white applicants” for “the faces behind the counter to match the customer base.”

In March, a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit in Atlanta ruled that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on sex, did not include discrimination based on sexual orientation. But in April, by an 8-3 vote, the U.S. Court of Appeals for the Seventh Circuit in Chicago ruled that Title VII does include discrimination on the basis of sexual orientation.

In September, the U.S. Court of Appeals for the Second Circuit in New York heard arguments in a case brought by a sky-diving instructor who said he was fired because he was gay. Lawyers for the federal government appeared on both sides, one representing the EEOC and one representing the Trump administration.

New Year’s festivities had barely ended in January 2018 before four female former Google employees sued the company in superior court in San Francisco for discriminating against women, alleging that Google “systematically pays and promotes men more than women.” Not a week later, two male former Google engineers sued the company in superior court in California’s Santa Clara County for discriminating against conservative white men, alleging that Google “is a hostile workplace for employees with conservative views, and that the company unfairly favors women and certain minorities when hiring and promoting.”

On the surface, it might seem as though both dress codes and discrimination restrict personal freedom and therefore would not exist in a free society. Actually, however, the case is just the opposite. Although dress codes and discrimination aren’t essential to a free society, they may very much be part of a free society because the freedom of private individuals and businesses to institute dress codes and practice discrimination without government interference is absolutely essential to a free society.

Dress codes

“No Shirt, No Shoes, No Service” — I can remember seeing signs to that effect at the entrance to some business establishments when I was growing up. Yet, even in our now-only-relatively free society, some restaurants and nightclubs still have a dress code. The ability of any place of business to have a dress code for patrons, clients, customers, or vendors is a mark of a free society. If someone doesn’t like the dress code of a place of business, then, in a free society, he has two options: 1. Conform and do business there anyway; 2. Take his business elsewhere. Filing a complaint with a government agency or initiating a lawsuit is not a legitimate option, not in a free society.

Some places of business require their employees to wear uniforms, dress clothes, hats, aprons, or some specific piece or color of attire. They may also prohibit (or in some cases, try to prohibit) their employees from wearing ball caps, burqas, hijabs, yarmulkes, headscarves, turbans, shirts with messages, or revealing clothing, as well as having visible tattoos, multiple body piercings, or excessive jewelry. That too is a mark of a free society. If an employee doesn’t like his employer’s dress code, then he has two options: 1. Conform and work there anyway; 2. Work somewhere else. Again, filing a complaint with a government agency or initiating a lawsuit is not a legitimate option, not in a free society.

It is no different when it comes to individual persons and their place of residence or other property. In a free society, they alone are the ones with the authority to institute or not institute dress codes for guests on their property. If a guest doesn’t like a property owner’s dress code, then, in a free society, he has two options: 1. Conform and enter or remain on the premises or property; 2. Leave the premises or property. Once again, filing a complaint with a government agency or initiating a lawsuit is not a legitimate option, not in a free society.

In a free society, property rights are paramount. He who owns the property establishes (or delegates to an agent to establish) the dress requirements for entry, employment, and activity. That is true whether the property is a private residence or a place of business. Refusing someone entrance to, employment at, or service on the property you own or manage because of how he is dressed or not dressed is not committing aggression against him. The “penalty” for violators of a home’s, employer’s, or business’s dress code is exclusion, firing, or refusal of service, not beatings, fines, or imprisonments. In a free society there is no right to trespass, no right to a particular job, and no right to service.

In a free society, property rights are absolute. It doesn’t matter if a dress code is considered to be illogical, unreasonable, irrational, unnecessary, or “extreme.” For example. A restaurant that opened in Paris last year doesn’t have a dress code; it has a “no dress” dress code. O’naturel is the city’s first nudist restaurant. The 40-seat gourmet restaurant is located away from the tourist hotspots and trendy restaurants. A heavy curtain obscures the restaurant’s large windows, and a second set of curtains prevents gawkers outside from peeking into the dining room when the front door is open. Diners disrobe in a coat-check room before being shown to their tables where they dine, fully nude, on shredded whiting, duck foie gras, escargots, and crème brûlée. The waiters and kitchen staff keep their clothes on for reasons of hygiene. If a potential diner doesn’t like the “no dress” dress code, then he has two options: 1. Conform and eat there anyway; 2. Eat somewhere else.

There are a number of things that are true about dress codes and a free society.

In a free society, businesses could institute any dress code for their customers.

In a free society, employers could institute any dress code for their employees.

In a free society, individuals could institute any dress code for guests in their home.

In a free society, it would be solely at the discretion of businesses, employers, and individual owners whether to provide a religious or other accommodation for dress codes or anything else.

In a free society, property owners could require or prohibit any cultural, ethnic, religious, or political jewelry or attire.

In a free society, property owners would have the absolute right to refuse entrance, service, or employment to anyone, not only on the basis of how he was dressed, but also because of his hairstyle, hair color, facial hair, tattoos, scars, height, weight, sex, age, race, color, complexion, disability, or anything else that relates to appearance.

That doesn’t mean that in a free society there are no rules, regulations, or standards of acceptable dress; it just means that government doesn’t decree them.

Discrimination

The federal government has long been concerned about discrimination. The Civil Rights Act of 1964 prohibits workplace discrimination “because of such individual’s race, color, religion, sex, or national origin.” The Age Discrimination in Employment Act of 1967 “protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment.” The Fair Housing Act of 1968 prohibits “discrimination in the sale, rental, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status or national origin.” The Age Discrimination Act of 1975 “prohibits discrimination based on age in programs or activities that receive federal financial assistance.” The Americans with Disabilities Act of 1990 prohibits discrimination based on disability. The existence of these laws is unfortunate, and for several reasons.

Discrimination is a crime in search of a victim. Every real crime needs a tangible victim with measurable damages. Discrimination is not aggression, force, or threat. It should never be a crime.

Discrimination means freedom. There is nothing inherently wrong with discrimination. It involves choosing between or among options. To discriminate is simply to choose something and exclude something else. To outlaw discrimination is to outlaw freedom of thought. By their very nature, the natural rights of freedom of assembly, freedom of association, free enterprise, and freedom of contract include the right to discriminate.

Discrimination is an essential part of property rights. No one has the right to any particular job, membership, residence, product, or service. If a property owner cannot restrict whom he employs, whom he engages in commerce with, whom he rents or sells to, whom he admits, and whom he associates with, then he has no property rights.

Discrimination doesn’t have to be reasonable, rational, sensible, objective, fair, justified, or logical in order to be permitted. Those things are all irrelevant.

Discrimination doesn’t have to be neutral — i.e., not based on stereotypes, assumptions, ignorance, fear, prejudice, partiality, bigotry, sexism, or racism — in order to be permissible. It doesn’t matter why the discrimination takes place.

If someone doesn’t like an individual’s, an organization’s, or a business’s practice of discrimination, then, in a free society, he has two options: 1. Conform (if possible); 2. Go elsewhere. Filing a complaint with a government agency or initiating a lawsuit is not a legitimate option, not in a free society.

There are a number of things that are true about discrimination and a free society.

In a free society, there are no anti-discrimination laws.

In a free society, business owners have the right to refuse service to anyone for any reason on any basis.

In a free society, no potential customer has a claim on the property or the time of any business owner.

In a free society, no one has any legal recourse if a business refuses to engage in commerce with him, an organization refuses to accept him, a property owner refuses to admit him, or a person refuses to associate with him.

In a free society, businesses are able to discriminate against customers just as customers can now legally discriminate against businesses.

In a free society, “public accommodations” are still private businesses and therefore don’t have to accommodate all members of the public.

In a free society, anyone has the right to think what he wants about anyone else and choose to discriminate for any reason on the basis of those thoughts.

In a free society, property owners have the absolute right to refuse entrance, service, or employment to anyone, not only on the basis of his race or appearance, but also because of his sexual orientation, gender self-identification, marital status, ideology, disability, political affiliation, age, creed, religion, religious piety, familial status, national origin, ancestry, criminal record, health, IQ, or socio-economic status.

In a free society, the right to discriminate is absolute.

Conclusion

Should the Washington, D.C., nightclub have established a “no sneakers” dress code? That is a question that cannot be answered. Does the nightclub have the right to institute a “no sneakers” dress code? In a free society, certainly. Should the nightclub have engaged in discrimination? Again, that is a question that cannot be answered. Does the nightclub have the right to engage in discrimination? In a free society, most definitely. The fact that the nightclub’s bouncer might have practiced discrimination that was contrary to the directives of the club’s management doesn’t change anything. That is strictly an internal company matter and not the concern of government.

In a free society, government would not involve itself in any way with dress codes or discrimination.

In a free society, government would not try court cases concerning dress codes or discrimination.

In a free society, government would not interfere in any way with the employer-employee relationship.

In a free society, government would not interfere in any way with the business-customer relationship.

In a free society, government would not violate any individual’s or business’s property rights.

In a free society, government EEOCs would not exist.

Property rights are the key to what is often perceived as the dress-code and discrimination conundrums. It is property owners — residence owners and business owners — alone who solely establish rules, regulations, and requirements for entry, admission, employment, service, commerce, and activity that takes place on their property. In a free society, government doesn’t concern itself with those things as long as people’s actions are peaceful and voluntary.

This article was originally published in the April 2018 edition of Future of Freedom.

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