The Volokh Conspiracy

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Sex Discrimination

Bikini Barista Ban Violates Equal Protection Clause by Intentionally Discriminating Against Women Baristas


So Judge Ricardo Martinez ruled last week in Edge v. City of Everett (W.D. Wash.):

The Dress Code Ordinance requires all employees, owners, and operators of "Quick-Service Facilities" to wear clothing that covers "the upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of the legs below the buttocks, pubic area and genitals)." …

The Court finds that "a gender-based discriminatory purpose has, at least in some measure, shaped" the Ordinance. The record shows this Ordinance was passed in part to have an adverse impact on female workers at bikini barista stands. The Ordinance's ostensibly neutral classification is also an obvious pretext for discrimination based on the law's application. Plaintiffs' expert Dr. Roberts points out that the Dress Code Ordinance prohibits clothing typically worn by women rather than men, including mid-riff and scoop-back shirts, as well as bikinis. There is evidence in the record that the bikini barista profession, clearly a target of the Ordinance, is entirely or almost entirely female. It is difficult to imagine how this Ordinance would be equally applied to men and women in practice. It appears designed to ban not just "pasties and g-strings" or bikinis, but a wide range of women's clothing. Intermediate scrutiny is appropriate here.

Under this heightened standard, the Ordinance must have an "exceedingly persuasive" justification, serve "important governmental objectives" and the means must be "substantially related to the achievement of those objectives." …

The City of Everett clearly has an interest in reducing secondary effects of the bikini barista stands like crime, lewd conduct, and exploitation. As stated above, the record shows that this business model has been linked to at least some incidents of prostitution, lewd conduct, and sexual assault. However, it does not necessarily follow that the Dress Code Ordinance "will further the City's goal of preventing these harms by establishing minimum dress requirements and making it easier to detect violations and hold owners accountable," as stated by the City. The means by which the City is attempting to reduce crime and lewd conduct—a dress code for drive-thrus that bans midriffs and scoop back shirts—is so broad as to veer from being "substantially related" to just "related." The Court is particularly swayed by Dr. Roberts' observations that this Ordinance poses an unreasonable risk of demeaning enforcement. Assuming the owners of bikini barista stands are unable or unwilling to enforce this dress code, at some point law enforcement will be asked to measure exposure of skin by some method. This "encourage[s] a humiliating, intrusive, and demoralizing search on women, disempowering them and stripping them of their freedom."

The Court finds that, although this Ordinance satisfies the lower standard set forth by the Ninth Circuit under the First Amendment, it does not satisfy the heightened standard under the Equal Protection Clause ….

I'm traveling and only had the time to provide this brief except; read the opinion for more (and read this Ninth Circuit opinion rejecting the baristas' First Amendment argument).