Jottings By An Employer's Lawyer

Tuesday, November 28, 2006

"Untucked Shirts" Not A Constitutional Right

At least according to the 6th Circuit. Roberts v. Ward (6th Cir. 11/27/06) [pdf]. The question got posed after the Kentucky parks department decided to clean up their image by implementing a new dress code which included:
hair length for men above the collar, no visible body piercings with exception of in the ear lobes for women only, no visible tattoos (long sleeves, pants, bandages, or wrist bands are approved ways to cover), and the proper wearing of the prescribed uniform in each department, which in most cases includes tucking in shirts and blouses.
Surprisingly it was the tucked-in rule that seemed to cause the most controversy.

When four workers pushed the issue to the point of losing their jobs, they sued claiming their constitutional rights had been violated.

The tucked-in plaintiffs did not fare well. The Court found that the policy:
  • did not violate their first amendment right of freedom of speech since it was not about a subject of public interest;
  • was not a violation of due process — they argued it had been arbitrarily implemented — since they could identify no property or liberty interest that would entitle them to due process protection;
  • did not violate any equal protection right — they claimed the policy had a much more onerous impact on manual laborers who worked outside in the summer than it did on office workers. The Court noted such claims required a showing that the impacted group had "historically been the victim of discrimination or otherwise reflects invidious discrimination," and that plaintiffs had advanced no argument to support such claim.

A closer question according to the Court was that of one of the plaintiffs who in addition to not wanting to tuck his shirt in, also claimed a constitutional right to show his tattoo — USN —which he said showed his “support, loyalty and affection for the U.S. Navy.” Though closer, still not a winner.

First, with respect to the question of qualified immunity of the Park Commissioner, the Court held that it was not a sufficiently clear right to defeat the claim of qualified immunity. But the district court had also granted summary judgment for the state on substantive grounds, including no first amendment right to show the tattoo. On appeal, the 6th Circuit found the tattooed plaintiff's refusal "to comply with the dress code provided an independent basis for his dismissal, " sparing the Court the need to address the closer question of the First Amendment protection of his tattoo.

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