Clothing and Textiles Research Journal

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Forging Linkages between Dress and Law in the U.S., Part II: Dress Codes Sharron J. Lennon, Theresa Lennon Schulz and K.P. Johnson Clothing and Textiles Research Journal 1999; 17; 157 DOI: 10.1177/0887302X9901700306 The online version of this article can be found at: http://ctr.sagepub.com/cgi/content/abstract/17/3/157

Published by: http://www.sagepublications.com

On behalf of:

International Textile and Apparel Association

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Forging Linkages between Dress and Law in the U.S., Part II: Dress Codes Sharron J. Lennon Theresa Lennon Schulz Kim K. P. Johnson Abstract Dress and human behavior research, caselaw, and statutes related to workplace and school dress codes in the U.S. are discussed. In caselaw and statutes regarding dress codes, the way dress is interpreted by the legal system is consistent with research, in contrast to the way dress is interpreted in rape and sexual harassment cases. In both areas of law, the assumption is that inferences based on dress are accurate. Thus, both in framing statutes and in rendering judicial decisions, the legal system considers how observers interpret, make inferences, and act as a function of inferences based on the dress of the wearer. In rape and sexual harassment cases, this perspective allows the misuse of dress to shift blame from the perpetrator to the victim; thus, inference accuracy is a point of law. Dress code cases implicate issues of individual freedom, which are not related to inference accuracy. Research and policy linkages between dress and human behavior research and law are suggested.

Lennon, S. J., Schulz, T. L., & Johnson, K. K. P. (1999). Forging linkages between dress and law in the U.S., part II: Dress codes. Clothing and Textiles Research Journal, 17(3), 157-167. Key Words: workplace dress codes, school dress codes, uniform codes, dress and law.

Forging Linkages between Dress’ and Law in the U.S., Part II: Dress Codes Dress codes, both formal and informal, are used to regulate dress in the context of the workplace and schools. Although relatively few statutes exist that focus on regulated dress in these settings, caselaw (e.g., judicial decisions) has developed on these topics. Scholars of dress and human behavior are interested in workplace dress (Damhorst, 198485 ; Johnson & Roach-Higgins, 1987a; 1987b; Kimle & Damhorst, 1997; Thurston, Lennon, & Clayton, 1990) and how it is regulated (Easterling, Leslie, & Jones, 1992). Workplace dress and its regulation have also been topics of interest among popular press writers for a number of years

(Kazakoff, 1996; Molloy, 1975; 1977; Neuborne, 1997; Ricapito, 1997). In addition, both scholarly writers (Behling, 1994; 1995; Behling & Williams, 1991; LaPoint, Holloman,

Author’s Addresses: Sharron J. Lennon, Department of Consumer and Textiles Sciences, Ohio State University, Columbus, OH 43210-1295, email: [email protected]; Theresa Lennon Schulz, T. L. Schulz, P.A., Lake Elmo, MN, and Kim K. P. Johnson, Design, Housing and Apparel, University of Minnesota, St. Paul, MN 55108-6134.

& Alleyne, 1993; Stanley, 1996) and the popular press have focused attention on student dress in public schools (e.g., Edwards, 1997; Lawton, 1997; McManus, 1987; &dquo;Schools Adopt,&dquo; 1996; Stemberg, 1997) suggesting the interest of the general public in these issues. Regulation of dress, both in the workplace and in schools, has led to considerable debate. The popularity of casual dress in traditionally formal workplace settings and the movement toward increased regulation of dress in schools has created opportunities for scholars in textiles and clothing to contribute both knowledge and expertise to the legal community. This article is the second in a two-part set, the first of which focused on the use of dress in rape and sexual harassment cases. In this article we focus on dress codes in the workplace and dress and uniform codes in public schools. Scholarship in dress and human behavior, statutes, and caselaw as related to these issues are presented and the consistency of law with research is discussed. We raise ques-

1 W hen discussing dress and human behavior research, we have relied the Eicher and Roach-Higgins (1992) definition of dress as any modification of and/or supplement to the body. However, when discussing caselaw or statutes we have used the terms used therein, such as appearance, clothing, or hairstyle. on

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tions related to future research and policy, and finally, attempt to reconcile the different ways the legal system uses and interprets dress across different areas of law.

mining the content of their dress codes (Klare, 1992). Thus, employers and unionized employees can collectively bargain

over

clothing

and appearance issues. In this context,

employers may be required to reasonably justify dress codes in terms of managerial interests such as safety or maintenance of company image (Klare, 1992). Dress Codes in the

Workplace

The Law

&dquo;Traditionally, employers have had wide discretion to establish all of the conditions of employment&dquo; (Rothstein, Craver, Schroeder, Shoben, VanderVelde, 1994, p. 479), which include clothing and grooming (i.e., dress) as part of their control over the operation of their businesses. Many current legal principles are derived from common law or those principles and rules deriving their authority &dquo;from usages and customs of immemorial antiquity&dquo; (Black’s Law Dictionary, 1990, p. 276) and modified through judicial decisions. However, these common law principles have been at odds with emerging social values of autonomy, privacy, freedom of expression, and freedom of association in the United States (Rothstein et al., 1994). Modem U.S. law still gives employers the authority to determine many of the essential aspects of the business operation, but does not permit the employer to unreasonably intrude or limit certain freedoms of the employees (Rothstein et al., 1994). In recent years, the employer’s right to control employees’ clothing and grooming has been challenged both in the private sector and the public sector. Employer policies related to grooming (e.g., hair length, facial hair, hair style) and clothing (e.g., uniforms, eyeglasses, headcoverings) have been challenged under Title VII of the Civil Rights Act of 1964, under state laws similar to Title VII, on constitutional grounds such as freedom of expression and association (guaranteed by the First Amendment), and on principles of gender and religious discrimination (Rothstein et al., 1994). Most jurisdictions2 uphold an employer’s right to set standards for grooming and clothing through dress codes, as long as the dress codes are rationally related to a legitimate business interest (e.g., to project the proper professional image), governmental interest, or for health and sanitation reasons (Rothstein et al., 1994). Dress codes may be worded inclusively (i.e., what the employee may wear) or exclusively (i.e., what the employee may not wear). Because there is little direct regulation of employer policies regarding employee dress codes, employees must bring lawsuits against their employer to challenge dress codes. If unionized, employees have the statutory right to participate in deter-

The District of Columbia has a statute to the contrary (Rothstein et al., 2

1994).

3Equal Employment Opportunity Commission. Only dancer pants and sheer stockings were worn beneath the poncho 4

(Rothstein et al., 1994) and because the employee was tall and the uniform was short, it was revealing. Because of the revealing nature of the uniform, the employee did attempt "to have the uniform altered or replaced with a less revealing uniform" (p. 481).

Caselaw demonstrates that if a dress code is found to discriminate unreasonably against employees on the basis of race, religion, gender, or other proscribed factors, it may or may not be interpreted as violating Title VII and possibly other statutes. For example, in a leading constitutional dress code case, Goldman v Weinberger ( 1986), the U.S. Supreme Court held that a Jewish Air Force member did not have a First Amendment right to freely exercise his religion by wearing a yarmulke while on duty because it was not part of his uniform. The Court found that the military did not discriminate against this individual based on his religion because the military dress code was based on the neutral, objective standard of visibility and served the legitimate purpose of encouraging &dquo;the subordination of personal preferences and identities in favor of the overall group mission&dquo; (Goldman v Weinberger, 1986, p. 508). There have been a number of cases involving employermandated dress codes outside the military. In general, courts have held that if employers mandate uniforms for their employees, they cannot unfairly discriminate between men and women in the nature of the uniform. For example, one court held that a bank could not require female tellers to wear a uniform if male tellers were allowed to wear business suits (Carroll v Talman, 1979). The Court of Appeals for the Seventh Circuit noted in this case that the uniform rule was demeaning to women because customers may assume that uniformed employees have less authority than nonuniformed employees. However, different dress codes for men and women are generally upheld when they are not demeaning and are not more costly to one sex than the other. As a result, dress codes may perpetuate gender-role stereotypes (Klare, 1992; Whisner, 1982). For example, a television station was held not to have violated the rights of a female news anchor who was fired because she was not feminine enough in her clothing or makeup (Craft u Metromedia, 1985). In another case, a court agreed that a bank could lawfully refuse to allow male bank employees to wear earrings to work even though female employees could wear earrings to work because the bank had an interest in preserving its conservative banking image (Capaldo u Pan Am, 1987). Courts have also held that it is unlawful for an employer to require female employees to wear uniforms that subject them to sexual harassment, especially when wearing the uniform is not a bona fide occupational qualification for the job. In the case of EEOC’3 u Sage Realty Corp. (1981), a female building lobby attendant was given a special bicentennial outfit to wear that consisted primarily of a poncho made &dquo;to resemble the American flag&dquo; (Rothstein et al., 1994, p. 481 ). This outfit was very body-revealing.’ When she wore the outfit, building visitors harassed her by making sexual propositions, lewd comments, and gestures. The District Court for the Southern District of New York held that the employer violated Title VII by requiring her to wear an outfit that was not necessary to complete the job, that the


the employer should reasonably have known would lead to sexual harassment, and that the employer actually did know subjected the employee to such harassment (EEOC v Sage p. 608). There have also been a number of cases involving cocktail and restaurant waitresses who have been required to wear revealing uniforms. The waitresses sued their employers on the grounds that the uniforms subjected them to sexual harassment or to physical discomfort and ailments, such as colds (Rothstein et al., 1994). In one case the employer specifically instructed the employees to &dquo;project an air of sexual availability through the use of provocative outfits&dquo; (EEOC v Newtown Inn Assoc., 1986, p. 958). The court held that the employer’s instruction was enough to infer gender discrimination, unless the employer was able to prove that wearing the revealing outfits was a bona fide occupational qualification for the job (Rothstein et al., 1994). If employees assert that their constitutional or statutory rights are being violated because they are required to wear a certain uniform or maintain a certain appearance, the employer can assert the defense that the uniform or appearance is necessary as a bona fide occupational qualification. For example, to gain entry into private residences, employees of local telephone or cable companies may need to wear uniforms to identify themselves as legitimate representatives of their employers. Restaurants and bars seeking to attract and retain certain customers commonly try to defend their dress codes as being necessary to attract customers, although this defense is not always successful. An airline unsuccessfully argued that its dress code requiring female flight attendants and ticket agents to wear high boots and hot pants was necessary for the business to project an image of &dquo;feminine spirit, fun and sex appeal&dquo; (Wilson v SouthwestAirlines Co.,

Realty Corp., 1981,

1981, p. 292). Research Findings In upholding an employer’s right to regulate employee dress for reasons other than health or sanitation, the legal system assumes that (a) employers have the right to run their businesses as they wish, (b) employee dress affects clients’ or customers’ perceptions of employees and of the business,66 and (c) businesses have the right to control employee dress in order to project a desirable business image. Therefore, employers may strategically manipulate the image of their businesses through dress codes and other rules. For example, at Walt Disney World, costumed workers must proceed to their place of work underground so as not to appear out of context to guests (e.g., wearing a French costume in &dquo;China&dquo;) and possibly reflect poorly on the complex.

5 O f course, the courts hold the actual harassing party liable for the sexual harassment under Title VII of the Civil Rights of 1964. The unusual thing about the EEOC ν. Sage Realty Corp. (1981) decision was that the employer was also held liable based on evidence that he was aware of the nature of the lobby attendant’s complaints of harassment, but did

nothing

to alleviate them.

A6 lthough much research in dress and human behavior supports these statements, judges, jurors, and attorneys are unfamiliar with these findand operate as if they are "common sense."

ings

Business officials and other professionals believe that dress affects how they and their employees are perceived. A survey of 1,000 personnel administrators revealed that they believed dress is an important aspect of service marketing and that they considered compliance to a dress code in employee performance evaluations (Easterling, Leslie, & Jones, 1992). In another study, rehabilitation personnel reported that informal dress codes existed in their workplaces (Matkin & Riggar, 1985). In addition, these respondents reported that their own attitudes (82%) and behaviors (60%) toward other people were influenced by those others’ attire. Finally, a majority of respondents (85%) reported that their concept of a professional image included dress. Research on dress in the workplace. According to some scholars (Damhorst, 1991; Davis, 1984; Lennon & Davis, 1989) the largest amount of research conducted on dress and human behavior is concerned with people’s perceptions of others as a function of how they are dressed (e.g., Damhorst, 1984-85; Lennon & Miller, 1984; Miller, 1982; Thurston, Lennon, & Clayton, 1990). These perceptions are what Livesley and Bromley (1973) refer to as interpretative inferences, which consist of general traits that others assign to the wearer. Also, task-related perceptions of women have commonly been studied as a function of clothing. When compared to stimulus persons wearing dresses or casual clothing, stimulus persons wearing suits are assigned more occupational success (Davis, 1987; Johnson & Roach-

Higgins, 1987b), more professionalism (Thurston, Lennon, & Clayton, 1990), more competence (Johnson & RoachHiggins, 1987a; Scherbaum & Shepherd, 1987), and more independence (Johnson & Roach-Higgins, 1987a). Stimulus persons wearing masculine clothing (Forsythe, 1987; Forsythe, Drake, & Cox, 1984), formal clothing (Damhorst, 1984-85), or clothing appropriate for an interview (Bardack & McAndrew, 1985; Johnson & Roach-Higgins, 1987a; 1987b) are perceived to be more likely to possess managerial traits than stimulus persons wearing dresses or casual clothing. Clearly, dress influences perceptions about potential employees’ traits. Extended inferences include those that extend to somesomething else associated with the wearer (Livesley & Bromley, 1973). Applied to the workplace, these include inferences about (a) individuals and groups with whom an employee is associated and (b) the business or association that hired an employee. Researchers have demonstrated that people do make extended inferences on the basis of clothing. Lapitsky and Smith ( 1981 ) found that essays thought to have been written by attractively dressed people were evaluated more favorably than those thought to have been written by unattractively dressed people. Darley and Cooper (1972) found that voters were willing to ascribe more radical opinions to an unseen candidate associated with a campaign worker dressed in jeans and an old army jacket than to a candidate associated with a campaign worker dressed in a coat and tie. Workman and Johnson (1989) found that their participants easily made extended inferences. As compared to a taxi driver dressed in inappropriate clothing, a taxi driver dressed in appropriate clothing received favorable inferences about his personal characteristics, his abilities, and about the city for which he worked. In summary, people make favorable inferences about attractively one or


professionally dressed others and make favorable and unfavorable inferences that go beyond the clothed person to include entities (e.g., individuals, groups, place of employment) associated with the person. or

Consistency of Law with Research Findings In endorsing the general right of an employer to govern employee dress,’ the action of the courts is consistent with research findings from dress and human behavior.8 Clearly dress affects interpretative inferences, but the research on extended inferences is arguably more relevant to legal decisions regarding workplace dress. That research, although limited, shows clearly that the dress of a person affects others’ perceptions of the organizations associated with the person, such as the business for which the person works. In Part 1 we presented arguments that people’s perceptions of others may be inaccurate and biased. From a legal perspective, however, in a workplace setting what matters is the content of the inferences, not whether the inferences are accurate and unbiased. The employer has an interest in maintaining a successful business and providing employment, activities that may include strategically managing a business image. These points may outweigh the employees’ right to individual expression through dress.9 Given the workplace realities of (a) a scarcity of skilled workers (Gebolys, 1997) and (b) a growing popularity and acceptance of casual business dress (Kazakoff, 1996; Neubome, 1997; Ricapito, 1997), employers may decide to relax dress codes in order to retain valued workers.10

Cases are all initially heard by the district (or trial) court, and then if appealed are heard by the circuit court of appeals and from there may be heard by the U.S. Supreme Court. Caselaw can develop differently between states because the district courts may interpret or apply law in different ways and because different state statutes could apply. District courts do not have to follow the decisions of other district courts, or even the circuit courts of appeals in any other circuit but their own. Consequently, it is common for district courts and courts of appeals to reach opposite conclusions. Because the Supreme Court’s decisions are binding on all district and circuit courts, the Supreme Court can resolve the difference by rendering a decision on the issue, if the justices agree to hear the case in question. As a result, many years may pass during which the circuits may develop different legal precedents.l2 Therefore, caselaw regarding school dress codes varies dramatically depending upon the geographical location of the school and the circuit that has legal jurisdiction (Kuhn, 1996). In particular, caselaw regarding hair style restrictions&dquo; in school dress codes varies widely.&dquo; However, certain rules regarding student dress codes apply throughout the U.S. l~ Dress codes in the workplace are considered valid because they promote worker safety or enhance/maintain company image, whereas dress codes in schools are considered valid if they promote student safety or if they prevent disruption and distraction of fellow students (Alexander & Alexander, 1984). For example, if student appearance is so different and attention-getting that it detracts from the educational process, then the school administration can validly intervene to regulate appearance. In a classic U.S. Supreme

Dress Codes in Public Schools The Law

Historically it was believed that attending school was a privilege, and virtually any rule or regulation imposed upon students and their conduct

valid (Alexander & Alexander, 1984). Today, however, law maintains that students do not lose their constitutional rights when they enter the school building, although student conduct can still be regulated. Public school officials may regulate student conduct, including their dress, as long as the regulations are reasonable and necessary to provide an environment conducive to learning. When considering the legality of a school regulation, courts must weigh the school’s interests in providing an appropriate learning environment against the student’s loss of a particular freedom or right in being limited in clothing or grooming choices (Alexander & was

Alexander, 1984). To understand the status of law regarding dress codes in schools in the United States, it is important to understand the court systems. A state’s restrictions on its schools must be consistent with federal law, but need not be consistent with other states’ laws. Each state has a court system that deals with state laws, whereas the federal court system deals with nationwide laws and has numerous district courts, with at least one in each state. Several districts comprise each of eleven federal circuits&dquo; and each circuit has a court of ap-

peals (i.e.,

an

appellate court).

E7 mployers are not allowed to require employees to dress in such a way that would subject the employees to harassment, even if that dress code would otherwise be in the best interests of the company

(e.g., by at-

tracting more customers). 8 I n the context of workplace dress, the legal system makes inferences about dress that agree with research findings.

For example, in Capaldo v. Pan Am (1987) the court upheld the bank’s 9 refusal to allow

a

male

employee to wear an earring

while at work.

Establishing a casual business dress code is an inexpensive and popular 10 strategy for recruiting skilled workers (Kazakoff, 1996; Neuborne,1997).

"Congress

is

currently considering establishing

a

Twelfth Circuit

(Mauro, 1997). In 12

legal scholarship legal precedents

are

sometimes called theories.

Dress codes, as in clothing and accessories, can be distinguished from 13 hair regulations. For example, Mahling (1996) states "Dress codes differ from hair regulations, however, because regulations governing dress do not compel students to alter their physical beings" (p. 736).

14 As law has developed to date, cases in the First, Fourth, Seventh, and Circuits are more likely be resolved in favor of students and cases in the Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits are more likely to favor schools (Bartlett, 1986).

Eighth

The 15

Supreme Court has already established certain general rules re-

garding student dress codes.


,

Court decision, Tinker v Des Moines Independent School District ( 1969), the court held that school rules and regulations should be based on legitimate school interests. If the purpose of the rule is unclear or nonexistent, then there should be no rule. The Tinker case involved the decision of students and their parents to publicize their objections to the Vietnam War by wearing black armbands to school. The Des Moines School District learned of this plan just two days before it happened and implemented a special rule prohibiting armbands in the school. The court held that wearing armbands constituted a form of speech protected by the Constitution. The court then balanced the students’ right to express themselves in that manner in school with the school’s interest in preventing disruptions. The Supreme Court carefully chose its words in this decision, holding that for student activity to be prohibited, school officials must reasonably forecast disruption in the school, and they must have some evidence to support their predictions. Furthermore, the Court ruled that the predicted disruption must be substantial and must be judged to be physical and damaging to the learning environment at school (Alexander &

Alexander, 1984). School dress codes may be overturned if they are vague and difficult for students to understand or if they are not specific. In other words, dress codes that forbid immodest or bizarre clothing, without detailing what clothing the school considers to be either immodest or bizarre, will be deemed vague and will likely be overturned. But if the dress code uses specific examples, such as forbidding tight skirts or dresses and shorts that are six inches above the knee, the code will likely be upheld (Alexander & Alexander, 1984). In one case still pending before the highest state court in Massachusetts, a school dress code prohibiting clothing with &dquo;comments or designs that are obscene, lewd, or vulgar&dquo; (Pyle u South Hadley School Committee,1995, p. 20) is being challenged. In the Pyle case, the question before the state court is whether under state law, a school may prohibit students from wearing t-shirts with vulgar messages if they cause no disruption or disorder in the school.’6 School dress codes may also be overturned if they have no legitimate basis. For example, the Eighth Circuit Court of Appeals invalidated an Arkansas school dress code that prohibited, among other things, girls from wearing jeans with a zipper in the front and all students from wearing untucked shirts that were not cut squarely (Wallace u Ford, 1972). Although the school argued these rules were intended to encourage self-respect and prohibit revealing or seductive

One t-shirt at issue in the Pyle case contained the words "Coed naked 16 band: Do it to the rhythm." The other t-shirt read "See Dick drink. See Dick drive. See Dick die. Don’t be a Dick." These messages can best be described as personal, whereas in the Tinker case the message was

political.

Tennessee allows a uniform style of clothing to be adopted and Utah 17 allows for a designated uniform to be established through dress codes. The idea that lawmakers view clothing as an influence on others 18 rather than on oneself is totally consistent with the caselaw on rape and sexual harassment.

clothing, the court decided that the reasons for the rule were

legitimate and overturned them on that basis. Decisions have been mixed as the courts have attempted to determine if dress codes have a legitimate basis. For example, in Fowler v Williamson ( 1979) a school dress code prohibiting jeans at graduation was upheld. Yet in the case not

of Bannister v Paradis (1970), the Federal District Court in New Hampshire overturned a school rule that prohibited students from wearing jeans to school, because the school could not provide any justifiable reason for its rule. However, the Texas Supreme Court held in the case of Barber v. Colorado Independent School District ( 1995) that a school dress code forbidding boys from wearing earrings or hair that touched their collars was legitimate. The Indiana Court of Appeals also upheld a school rule forbidding boys from wearing earrings in the case of Hines u Caston School

Corporation (1995). In instances when schools have had social strife, the have considered rules against wearing insignias or other emblems that fragment students into different groups to be reasonable to prevent disruptions in the schools (Alexander & Alexander, 1984). For example, wearing buttons that read &dquo;white is right&dquo; or &dquo;black power&dquo; or other potentially inflammatory messages may be regulated by the schools, but in a consistent manner taking care not to favor any particular viewpoint. It has also been held that schools may prohibit students from wearing buttons or clothing with the confederate flag when it exacerbated racial tension and the flag was used to indicate a desire to segregate schools (Smith u St. Tammany Parish School Board, 1971). In response to the rise of gang activity and in an attempt to identify gang members based on appearance symbols (e.g., clothing colors), schools around the country are adopting dress codes to thwart gang identification and provide safer learning environments (Barbarosh, 1995; Hethorn, 1994). Recently, California (Cal. Educ. Code, 1994; 1996), Minnesota (Minn. Stat., 1993), New Jersey (N.J. Stat., 1996), Ohio (Ohio Stat., 1996), Tennessee (TN Stat., 1994; 1996), and Utah (Utah Stat., 1994) passed laws that allow individual school districts to develop dress codes and/or uniform codes. All the statutes except Minnesota’s specifically mention gang-related clothing, apparel, regalia, or activities. However, only California, New Jersey, and Tennessee specifically allow the prohibition of clothing that indicates gang affiliation. Such laws allow administrators or school boards to decide which clothing and personal appearance practices represent &dquo;gang identity&dquo; (Hethom, 1994). Dress codes developed in accordance with such laws need to be carefully crafted to avoid the ambiguity in meaning that may accompany changes in fashionable appearances (i.e., clothing, hairstyles, and grooming practices). Precisely because of this problem, some school districts have established noncompulsory school uniform policies (Barbarosh, 1995). California, Minnesota, New Jersey, and Ohio specifically allow uniform policies to be developed, whereas Tennessee and Utah laws are less clear.&dquo; However, both the wording of (a) the six statutes and (b) the statutes’ legislative histories suggest that lawmakers do not expect one’s clothing to affect one’s own behavior. Rather, both suggest that the lawmakers’8 were concerned with the effects of one’s clothing on the behaviors of classmates. courts


In the courts, school rules regarding uniforms generally have been upheld if they have a legitimate purpose, such as to protect the safety of the students or to prevent disrup-

tions in the educational process (Alexander & Alexander, 1984). In practice, the adoption of a specific uniform makes it possible to recognize non-students on campus and, on that

basis, promotes safety (King, 1996). King argues that uniforms are useful in warding off trespassers because somein street clothing in the midst of a uniformed collectivity would be easily recognized as an intruder. However, a dress code such as adopted by East High School (Edwards, 1997; Stemberg, 1997) in Columbus, Ohio, that specifies white tops and black bottoms probably does little to contribute to safety because non-students could easily dress this way and gain access to the campus.’9 In addition, King argues that wearing uniforms may diminish the likelihood of wearing gang-related emblems or colors. one

In summary, students have a fundamental constitutional interest to dress and groom as they choose limited only by school dress codes that are legitimate, necessary, and not vague. If dress code rules are presented as rationally related to the educational mission of the school, and not arbitrary or are generally upheld (Kuhn, 1996, p. 84). In school dress code cases, the court will apply a balancing principle, weighing the interests of individual students to regulate their own appearances against those of the school to maintain a decorous learning environment.

capricious, they

Research Findings It is important to determine specific personal attributes and attitudes conveyed by clothing in an educational setting, because dress codes have been overturned when they have no legitimate basis. Researchers have investigated the effects of students’ appearances on others’ perceptions of them (Behling, 1994; 1995; Behling & Williams, 1991). In general, Behling and her colleagues found that students who wore suits were perceived as more intelligent and as having more scholastic ability than students who wore casual clothing. Behling (1994) designed research to specifically investigate the effect of school uniforms on students’ and teachers’ perceptions of behavior (e.g., prepared for class, punctual, participates in class, honest, polite, attentive), scholastic achievement (i.e., estimated GPA), and scholastic potential (i.e., highest education each model would obtain). Clothing styles worn by male and female models reflected dress codes at a well-known private school and included dressy (blazer, shirt and tie), casual (shirt, v-neck sweater, khakis), and clothing typical of a high school student (casual pants and long-sleeved t-shirt for the male; stretch pants and sweater for the female; jeans and a sweatshirt for both sexes). The boy’s behavior was rated (a) more positively than the girl’s when both wore jeans; (b) less positively than the girl’s when both dressed in casual clothing; and (c) more positively than the girl when both wore uniforms. For both sexes, low academic potential was associated with wearing jeans

The same rationale applies to the "uniforms" sold via the new Land’s 19 End school "uniform" catalog through which items could be purchased as of May 15, 1997.

and high academic potential blazers (the uniform).

was

associated with

wearing

Although the feasibility of retaining school uniforms has been studied by researchers (Barrington & Marshall, 1975), research on dress codes in schools to promote safety, to prevent distraction, or to prevent disruption has until recently been non-existent. In particular, no published research exists which relates dress codes to a safer environment in terms of identifying and warding off trespassers. What we do know is that when dress is salient (Lennon & Miller, 1984; Wingate, Kaiser, & Freeman, 1985-86) or bright in color (Miller, 1982) it can attract attention. For example, brightly colored or patterned clothing can draw attention to a wearer (Miller, 1982). A bathing suit worn to class and a t-shirt with obscene slogans are examples of attention-getting dress because they may represent deviations from the cultural norm. To the extent that dress and grooming practices are attention-getting, they may be distracting in an educational environment. Researchers have surveyed junior high students regarding their perceptions of influences on clothing choices and clothing decisions (Forney & Forney, 1995). The students did not favor a dress code and the authors concluded that &dquo;it is unlikely that dress codes can control gang dress in this school&dquo; (p. 32). Although students’ attitudes toward dress codes are important, others have suggested measuring behaviors as a function of dress codes. Holloman (1995) and her colleagues (LaPoint, Holloman, & Alleyne, 1993) have called for research regarding the effects of regulated student appearances, including uniforms, on student behaviors. In order to measure the effects of a dress code or uniforms on actual student behaviors, the ideal strategy to use is experimentation. However, manipulating uniform-wearing in the context of a school is likely to be impossible. Another strategy is to implement a quasi-experimental approach in a nonequivalent control group design (Kenny, 1975). Student behaviors at a school that has implemented a dress or uniform code could be compared to student behaviors at a comparable school with no dress or uniform code. Observations of student behavior could be made by unbiased parties. No published research of this type exists that relates dress codes to actual student behaviors, such as disruptions in class. Another useful strategy for research would be to conduct a longitudinal quasi-experiment without a comparison group. Recently, Stanley (1996) reported early results from such a longitudinal study. A school district in Long Beach, California, implemented mandatory school uniforms (in elementary and middle schools) in 1994 and began a longitudinal study of the uniforms in 1995. Parents, teachers, students, and administrators responded to an all-district survey of attitudes toward the uniforms. In addition, teachers reported class disruptions, selected crimes, acts of violence on the playground, and dress code violations. This information was provided by the district to the researcher, as were the number of suspensions. &dquo;Early research findings indicate that Long Beach schools are remarkably safer, although it is not clear that these results are entirely attributable to the uniform policy&dquo; (Stanley, 1996, p. 431). Reported crimes decreased after the institution of the uniform policy. For example, assault/battery decreased 34% and


fighting decreased 51 %. However, the author suggests cautious interpretation of these results because other factors may the decrease, such as the Hawthorne effect, the that violence may have been at its peak just when possibility the uniform policy was instituted, or the possibility that other safety measures may have been concomitantly introduced in the schools.2° In addition, Stanley (1996) suggests that

have led

to

if youths are wearing uniforms instead of fashions that may cause adults to perceive them as poten-

tially dangerous-such as styles commonly associated with youths involved in gangs or crimetheir behaviors may also be perceived as less threatening... Adults may also refrain from imposing stringent disciplinary actions, such as suspensions, because they are interpreting behavior, or the intent underlying behavior, differently due to the more socially acceptable appearance of youths wearing uniforms. (pp. 433-434) This continuing study is clearly important because (a) it allows for the study of the role of uniformed appearances longitudinally within a school context, and (b) it relates a uniform code to a safer environment. The popular press suggests that fewer disruptions will occur in schools as a function of wearing uniforms or complying with dress codes (e.g., Lawton, 1997; McManus, 1987; &dquo;Schools Adopt,&dquo; 1996), although few researchers have addressed such issues. Some research on children’s clothing and their actual behaviors have yielded non-significant findings. Kaiser, Rudy, and Byfield (1985) tested the hypothesis that play behavior of preschool girls would be linked to their clothing. However, the results indicated that the girls’ behaviors did not vary as a function of wearing skirts or pants (i.e., the clothing worn did not affect the wearer’s behaviors). In other research, Eisenberg-Berg, Boothby, and Matson (1979) found that preschool girls’ clothing was unrelated to the type of toy they selected for play. Though limited, and not specifically related to uniforms or dress codes, these findings (or lack thereof) might be interpreted as suggesting that school uniforms or other types of regulated dress for school settings will not be effective in controlling the behavior of the wearers. However, the absence of published research on how dress affects one’s own behaviors does not necessarily mean that dress does not affect one’s own behaviors. It may be that wearing a uniform, for any given student at any age, will not affect his or her behavior. It is also possible that wearing a uniform will affect one’s own behaviors; currently, published research on point does not exist. Research, however, demonstrates that dress affects the behavior of others. Dress cues affect social interactions such as invasion of personal space (Fortenberry, MacLean, Mor-

See also Paliokas and Rist (1996). They question whether 20 uniforms

are

or not

really effective.

21 As suggested by the attorney for the school district in Tinker Moines Independent School District (1969).

ν.

Des

ris, & O’Connell, 1978), helping behavior (Walton et al., 1988), compliance with a request (Geffner & Gross, 1984), and service priority in a retail setting (Stead & Zinkhan,

1986). For example, researchers have studied the effect of uniforms on compliance with a request and found that experimenters in uniforms received the greatest compliance (Geffner & Gross, 1984; Mauro, 1984). Bickman (1974) and Bushman (1984) have reported similar findings. Because uniforms are unlikely to be coveted by other students or to reflect gang symbolism, it is possible that wearing a uniform may shield the wearer from larceny motivated by the desire for expensive clothing (O’Neal, 1998) and from aggressive acts inflamed by gang symbolism.

Consistency of Law with Research Findings In general, schools may regulate student dress by developing dress codes that (a) regulate distracting appearances, (b) promote safety, and (c) prevent disruptions. Items of dress can be attention-getting; as such they could conceivably be distracting in class, providing some consistency with law. No published research has addressed increased student safety due to trespasser identification as a function of school uniforms or dress codes. One large study (Stanley, 1996) has shown that wearing uniforms has affected teachers’ reports of (a) classroom disruptions, (b) crimes, (c) acts of violence on the playground, and (d) reports of dress code violations. These findings thus support ties between uniform-wearing and increased safety and provide consistency with law. However, teachers’ reports may be biased; thus, what is needed is similar research collected by unbiased observers. Currently, no research shows that school uniforms or regulated school clothing actually prevents disruptions. Although we found no research that demonstrates dress has an effect on the wearer’s own behavior, dress does affect the behavior of others. Depending on the interpretation given to the six statutes which allow individual school districts to establish dress codes, consistency between research and law may or may not exist. However, while inflammatory messages conveyed by clothing may provoke youthful classmates to be disruptive,2’ there is no research evidence to suggest that uniforms or dress codes can operate to defuse potential disruptive situations or to pacify possible student conflict.

Linkages between Textiles and Clothing and Law Researchers studying dress and human behavior may benefit from collaborating with the legal community. Consider that on most campuses faculty must demonstrate research-based outreach efforts that engage the citizens of the state. By connecting with the legal system we can use research expertise in a very practical and important way which has the potential to affect the daily lives of state residents. For example, International Textiles and Apparel Association (ITAA) members might serve as consultants regarding research findings related to dress as statutes or dress codes are being framed and as dress codes are being challenged. Successful outreach efforts like these would graphically demonstrate the impact of our research. 163


In addition to consulting with lawmakers and local school districts, the issues discussed in this set of papers are ones for which we might provide expert testimony, providing yet another link between our respective disciplines. It is not uncommon for physical science scholars in textiles and clothing to serve as expert witnesses with respect to flammability of fabrics, forensic textiles, archeological textiles, or pesticide usage. Because of the role of dress in shaping outcomes in sexual assault and sexual harassment cases, the opportunity also exists for an activist role for interested and qualified social science researchers in textiles and clothing.

Future Research Efforts In the context of workplace dress we have focused on held valid by the courts for the regulation of dress: (a) to promote worker health and safety and (b) to maintain/ enhance company image. Numerous studies in dress and social perception provide strong support that impressions are formed on the basis of a person’s dress. Few studies have focused on dress and extended inferences. Extended inferences based on traditional occupational dress, as well as casual business dress, in business settings should be investigated in depth and with replication. Such research could provide important insights for lawyers practicing employment law. Due to increased consideration of school uniforms nationwide, the effectiveness of uniform codes and dress codes in the schools should be studied. We have focused on reasons generally held to be valid by the courts for establishing dress codes in schools: (a) to promote student safety, (b) to prevent disruption, or (c) to prevent distraction of fellow students (Alexander & Alexander, 1984). Thus, it is important to investigate these points. Although it is easy to envision how clothing might be distracting and how uniforms might promote one type of safety, no research suggests that regulated dress actually prevents disruptions or contributes to safety in educational settings. To settle these matters, ex post facto studies are needed to compare outcomes in schools with dress codes to schools without dress codes. These issues should be studied as related to dress in general and to dress codes and uniform codes in schools. In addition, research is needed that focuses on the extent to which uniform-wearing promotes school spirit and solidarity, contributes to the maintenance of high academic standards, and reflects respect for authority in the school context. 22 reasons

Policy Recommendations With respect to dress codes and uniforms in the public schools, policy statements should be based on research re-

garding increased safety or prevention of disruptions; how-

22 An oft-cited advantage for uniform codes is that uniform-wearing saves money for households (e.g., Evenrud & Hethorn, 1997; Holloman, 1995). However, recent research found that households that purchase uniforms spend more on other apparel than households with no uniform expenditures (Norum, Weagley, & Norton, 1998). We 23 are not suggesting uniform-wearing in schools will eliminate gangs or be effective at gang prevention (cf. Evenrud & Hethorn, 1997).

policy formulations at this time would be tenuous because little research has focused explicitly on school uniforms or dress codes in schools. For example, Barbarosh (1995) states that the ACLU has argued that other factors may have co-occurred with the introduction of the uniform code in Long Beach Unified School District (as acknowledged by Stanley, 1996), and as yet researchers have not demonstrated a cause and effect relationship between uniforms and subsequent behaviors such as gang violence. Unless and until such research is conducted, informed policy decisions cannot be made. In the meantime, ITAA members may wish to seek involvement locally to provide schools with what research-based information is currently available. This review has raised many questions in our minds. Consider that students are disadvantaged if (a) non-students come on campus and jeopardize student safety, (b) wearing gang or other group symbols that are both fashionable and gang-related inadvertently involve the wearer in violence or intimidation, (c) students are assaulted for their clothing, jewelry, or shoes (e.g., Anderson, 1994; O’Neal, 1997; Telander, 1990), (d) one ethnic group is more regulated than other ethnic groups, or (e) teachers judge students by their appearances (e.g., Behling, 1994). Dress codes are unlikely to solve these issues (e.g., Forney & Forney, 1995; Hethorn,1994), but a uniform code might contribute to the solution of these problems.23 Currently only six states have statutes that allow state officials/schools to establish dress codes and/or uniform codes in public schools. Should ITAA members endorse the effectiveness of school uniforms for preventing disruptions or increasing safety? Given the current state of research on the topic, it is impossible to do so. In addition, given importance of individualism and selfdeterminism in the U.S., it is likely that dress and uniform codes will continue to meet with considerable opposition. ever,

Different Areas of Law, Different Applications to Dress We have attempted to (a) present contexts in which dress is interpreted and used by the legal system, (b) present particular points of law that are germane within each context, (c) point out whether or not law is consistent with published research, and finally (d) recommend linkages between textiles and clothing and law in terms of research and policy. However, how dress is interpreted and regulated by the legal system may differ depending upon the context and specific law in question. For example, in the school and employment context, dress codes implicate issues of individual freedom and expression, whereas in the rape and sexual harassment context dress may be used to shift the blame from the defendant to the victim. In the next sections we discuss and compare ways the legal system uses and interprets dress in rape, sexual harassment, school dress code, and employment dress code cases in an attempt to reconcile these uses and interpretations.

Use of Dress in Rape and Sexual Harassment Cases To prove the offense of rape or of sexual harassment, it is crucial to prove whether or not the victim consented to (in rape cases) or welcomed (in sexual harassment cases) the


defendent’s behavior. Consent and welcomeness may be implicit or explicit. If implicit, ascertaining consent or welcomeness requires determining the mental states of the victim. Research has established the content of other’s (e.g., judges, jurors, defendants) inferences made on the basis of the victim’s dress. However, there is no evidence to suggest those inferences are always accurate, but there is evidence that such inferences often inaccurately reflect the victim’s actual mental state. The legal system assumes, without question, that these inferences that are common sense and widely held by people are accurate indicators of the mental state of the victim. By making that assumption and allowing the factfinders (e.g., jurors or judge) to make their own inferences regarding the dress of the victim, the law is substituting the perceiver’s (defendant, judge, jury) inference of the victim’s mental state for proof of the victim’s actual mental state (e.g., consent or welcomeness). In so doing, the courts have effectively redefined the offenses of both rape and sexual harassment. In other words, rape is legally defined as unlawful sexual intercourse with a woman without her consent. However when clothing is used to show consent, rape has, in effect, been redefined by some courts as unlawful sexual intercourse with a woman who the defendant24 infers did not consent (based on her dress). Sexual harassment is legally defined as sexual advances that are made a condition of employment and are not welcomed by the victim. However, when clothing is used to prove welcomeness, some courts have effectively redefined sexual harassment as sexual advances (a) that are made a condition of employment and (b) that the defendant infers are not welcomed by the victim (and are based on the victim’s dress). When there is no proof that such inferences are accurate, these modified definitions of the offenses are giving weight to the defendant’s inferences over the victim’ss actual mental state. In each case, the inference (of consent or welcomeness) is an element of the offense and as such its accuracy is of critical importance. Because dress does not necessarily convey accurate inferences of a wearer’s mental states, it should not be relied upon for that purpose. Use of Dress in Dress Code Cases In the case of dress codes, however, accuracy is not a point of law. Researchers have established the content of people’s inferences when they see employees or students wearing uniforms or following dress codes. Although there is no evidence that these inferences are accurate, from a legal perspective it does not matter. Regardless of the mental state of the employee or student in wearing what they wear, the content of the inferences (and subsequent behavior) is what is important. The law recognizes an employer’s legitimate business interest in conveying a professional image to the public (i.e., that the business is professional, trustworthy, competent) regardless of the accuracy of the image. The reason the employer wants to regulate dress in this situation is precisely to affect the public’s inferences about the business. Dress codes in schools are considered appropriate if they

In 24 criminal rape cases, when the defendant is guilty he is also the perpetrator.

further educational interests and if they do not unduly infringe upon individual rights. For example, in educational settings dress codes are generally considered valid if they promote safety, prevent disruption, or prevent distraction of fellow students. Thus, a t-shirt that says &dquo;white is right&dquo; may lead to disruptions in the classroom because of how other students interpret, make inferences, and act based on the message, regardless of how accurately the message reflects the mental state of the wearer. The reason the school wants to regulate dress in this situation is precisely to affect other students’ inferences and behaviors (e.g., to restrict the wearing of clothing which may cause disruptions). Thus, the legal issue in dress code cases focuses on the effect of the content of the inferences conveyed by dress and not on the accuracy of those inferences. To summarize, in rape, sexual harassment, employment dress code, or school dress code cases, the legal system simply assumes that inferences drawn from dress are always accurate. In rape and sexual harassment cases, accuracy of the inference is a point of law. In other words, the defense hinges on the implicit consent of the victim, which is inferred and therefore must accurately reflect the mental state of the victim. However, in dress code cases the accuracy of the inferences concerning the mental state of the wearer is not important legally. Instead what is important is how people respond to someone else’s dress (whether or not their inferences are

.

.

~.

accurate).

In applying social science research to law,

we may only do so within the contexts established by law and legal precedent. For example, given overwhelming evidence that some appearances convey predictable impressions/images, schools may wish to adopt dress codes to establish a chosen image. However, school dress codes have been upheld as lawful if their goal is to prevent disruption, prevent distraction, or promote safety. Thus, a dress code adopted for the purpose of conveying a favorable school image might not be upheld by the courts if challenged on constitutional grounds, although it would likely be considered an appropriate goal for a workplace dress code. Dress codes in the workplace are subject to scrutiny different from dress codes in schools, and the way dress is interpreted in rape and sexual harassment cases is yet different still. In attempting to decipher and understand the different ways in which dress has been interpreted in statutes and caselaw, it appears that these differences have less to do with the ways in which people perceive and interpret dress and more to do with the specific area of law, whether it is criminal or civil, and whether or not it limits an individual freedom. We believe it is time for ITAA members to share ideas and information with members of the legal system regarding dress, attributions made as a result of dress, behaviors motivated by dress, and legal discourse related to dress practices.

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