No Skirting This Issue

Look it up. It's in the Constitution. Or so argued one municipal transit authority employee when her employer mandated that all employees ' male and female ' wear pants. The employee, Grazyna Zalewska, argued that wearing a skirt was expressive conduct protected by the Constitution and that the ban on skirts implicated her liberty and equal protection rights under it. Expressive perhaps, but not on a Constitutional level, ruled the Second Circuit. Zalewska v. County of Sullivan, 316 F.3d 314 (2d Cir. 1/10/03) (Cardamone, Meskill, & Straub, Cir. Judges).

Zalewska was a van driver for Sullivan County's Meals-on-Wheels program. The County mandated that all employees wear a uniform consisting of a shirt, jacket, and pants. The stated reason for this dress code was to present a positive appearance to the public, create an esprit-de-corps among employees, and for safety. Zalewska objected, claiming that as a matter of 'familial and cultural custom' she never wore pants. She wore a skirt to work despite being told not to do so. She was suspended and later transferred to another position where she was allowed to wear skirts.

Zalewska sued for damages alleging that her due process and equal protection rights as well as her First Amendment rights had been violated. The district court granted the County's summary judgment motion.

The Second Circuit affirmed. The court denied Zalewska's First Amendment argument that the way she dressed was an important form of self-expression. The court acknowledged that in certain circumstances dress can be communicative and constitute protected speech.  But for that to be the case, the message communicated by the dress must be particularized and not merely a broad statement of cultural values.  For example, the court noted that wearing a black armband in protest of the Vietnam war was a protected form of speech.

In this case, however, the First Amendment was not implicated in the court's view because 'the ordinary viewer would glean no particularized message from Appellant's wearing of a skirt rather than pants as part of her uniform.' The court further rejected Zalewska's liberty interest claim, finding that the County's dress code was valid and based on legitimate government interests, namely, safety, professionalism, and a positive public image. The court noted that wearing a skirt might pose a safety problem for employees operating chairlifts and helping passengers on and off buses. The court was notably less convinced by the County's argument that banning skirts was a means of emphasizing professionalism on the job. Nonetheless, the court deferred to the County on this issue as well within the public employer's province.

Finally, the court rejected Zalewska's equal protection claim. The court noted that there was an incidental burden impacting women (and perhaps Scottish men) resulting from the ban on skirts, but found that this did not rise to an equal protection violation. The court noted that 'asking us to accept the proposition that a woman wearing pants dresses more masculinely requires a perpetuation of the very stereotypes that courts are supposed to suppress.'

In short, the court concluded that Zalewka's 'skirt as speech' claim had
no legs.

Look it up. It's in the Constitution. Or so argued one municipal transit authority employee when her employer mandated that all employees ' male and female ' wear pants. The employee, Grazyna Zalewska, argued that wearing a skirt was expressive conduct protected by the Constitution and that the ban on skirts implicated her liberty and equal protection rights under it. Expressive perhaps, but not on a Constitutional level, ruled the Second Circuit. Zalewska v. County of Sullivan , 316 F.3d 314 (2d Cir. 1/10/03) (Cardamone, Meskill, & Straub, Cir. Judges).

Zalewska was a van driver for Sullivan County's Meals-on-Wheels program. The County mandated that all employees wear a uniform consisting of a shirt, jacket, and pants. The stated reason for this dress code was to present a positive appearance to the public, create an esprit-de-corps among employees, and for safety. Zalewska objected, claiming that as a matter of 'familial and cultural custom' she never wore pants. She wore a skirt to work despite being told not to do so. She was suspended and later transferred to another position where she was allowed to wear skirts.

Zalewska sued for damages alleging that her due process and equal protection rights as well as her First Amendment rights had been violated. The district court granted the County's summary judgment motion.

The Second Circuit affirmed. The court denied Zalewska's First Amendment argument that the way she dressed was an important form of self-expression. The court acknowledged that in certain circumstances dress can be communicative and constitute protected speech.  But for that to be the case, the message communicated by the dress must be particularized and not merely a broad statement of cultural values.  For example, the court noted that wearing a black armband in protest of the Vietnam war was a protected form of speech.

In this case, however, the First Amendment was not implicated in the court's view because 'the ordinary viewer would glean no particularized message from Appellant's wearing of a skirt rather than pants as part of her uniform.' The court further rejected Zalewska's liberty interest claim, finding that the County's dress code was valid and based on legitimate government interests, namely, safety, professionalism, and a positive public image. The court noted that wearing a skirt might pose a safety problem for employees operating chairlifts and helping passengers on and off buses. The court was notably less convinced by the County's argument that banning skirts was a means of emphasizing professionalism on the job. Nonetheless, the court deferred to the County on this issue as well within the public employer's province.

Finally, the court rejected Zalewska's equal protection claim. The court noted that there was an incidental burden impacting women (and perhaps Scottish men) resulting from the ban on skirts, but found that this did not rise to an equal protection violation. The court noted that 'asking us to accept the proposition that a woman wearing pants dresses more masculinely requires a perpetuation of the very stereotypes that courts are supposed to suppress.'

In short, the court concluded that Zalewka's 'skirt as speech' claim had
no legs.