Saturday, September 23, 2017

Edge v. City of Everett: The Attack on Bikini Baristas

Baring a bit too much anal cleft, methinks.
On September 11, 2017, in Edge v. City of Everett, a group of women filed a lawsuit challenging the constitutionality of two ordinances adopted by the City of Everett, Washington, targeting bikini espresso stands. In case you aren't familiar with these establishments, they're drive-through coffee stands at which customers are served by women dressed in bikinis. The lawsuit alleges, among other things, that the laws violate baristas' First Amendment right to freedom of expression and their Fourteenth Amendment right to equal protection. The equal protection claim rests on the contention that the ordinances discriminate against women based on their sex.

The first ordinance merely expands the existing lewd conduct ordinance to prohibit exposure of the "bottom one-half of the anal cleft" or "more than one-half of the part of the female breast located below the top of the areola."

More interesting is the second ordinance, which requires that employees of "quick-service facilities" wear clothing that covers the "upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of legs below the buttocks, pubic area, and genitals)." The city subsequently issued guidance further explaining that the ordinance requires that workers wear at least either shorts or a skirt, and a tank top.

The plaintiffs' First Amendment claim rests straightforwardly on the personal expression restricted by the ordinances, which not only require certain forms of clothing but also limit other forms of expression such as the display of tattoos.

On the other hand, while my expertise is admittedly with statutory EEO law, not the U.S. Constitution, the equal protection sex discrimination claim strikes me as a bit of a stretch. Unlike federal EEO law, such as Title VII of the Civil Rights Act of 1964, the U.S. Constitution only applies to intentional discrimination and does not apply to policies that were adopted for neutral reasons but that disproportionately exclude members of a particular group. Here, there seems to be little evidence of intentional discrimination against women, except possibly the fact that the ordinances seem to affect only women. The council apparently adopted the quick-service facilities ordinance to address the perceived "proliferation" in sex crimes associated with bikini barista stands, and even if the ordinance may be overkill, the council's decision to use a sledgehammer to kill a fly does not mean that it discriminated against bikini baristas because of their sex.

In addition to free expression and equal protection claims, the plaintiffs have thrown in a vagueness challenge. In this amusing article from Reason, the lead plaintiff explains that she's not sure what "anal cleft" means, but she thinks it refers to the part right above the butt crack. As for me, I'm pretty sure it means the butt crack itself, since the ordinance only prohibits exposure of the lower half of the anal cleft. This limitation ensures that plumbers and Homer Simpson will be off the hook. The plaintiffs' complaint also alleges that the lewdness ordinance requires women to cover up three-quarters of their breasts, but as I read the ordinance, women are allowed to leave almost three-quarters of their breasts uncovered -- only half of the breast below the top of the areola has to be covered. So maybe this confusion shows that the ordinance is indeed vague.

I'm not much of a coffee drinker, but I'm a big fan of free expression, so I'm rooting for the baristas.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.