Williamsburg store owners allowed to demand modest dress code

January 23, 2014 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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The New York City Human Rights Commission (HRC) has dropped its challenge against seven Hasidic stores with mandatory dress codes promoting modesty.

Many Hasidic storeowners posted signs in their establishments demanding “No Shorts, No Barefoot, No Sleeveless, No Low-Cut Neckline Allowed In This Store.” In 2012, the HRC filed a complaint against these stores alleging that the dress codes were discriminatory against those of the same religious persuasion.

Hasidic Judaism mandates that women dress in a modest manner, wearing skirts and dresses below the knee, keeping their elbows and necklines covered, and, in some instances, covering their natural hair. Men are also required to dress relatively moderately.

The dress code notice posted in stores, the HRC asserted in 2012, discriminated against women, particularly those were not Hasidic and therefore not required, by religious law, to keep their bodies covered. They thus violated New York regulations, which make it illegal for establishments open to the public to post signs that directly or indirectly discriminate or deny service on the basis of gender or creed, HRC said at the time.
Cardozo law school professor Marci Hamilton believed the dress code notices were the Hasidic community’s way of “trying to impose their norms on the rest of the culture.”

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The Williamsburg storeowners fought back against the HRC’s complaint. With the help of lawyers Jay Lefkowitz and Devora Allon of the firm Kirland & Ellis, a counter-complaint was filed against the HRC. The storeowners asserted, in the first instance, that the dress-code notices were no different than the dress codes required at some high-end Manhattan dining establishments.  

“There are a “myriad of restaurants that impose dress codes requiring men — and only men — to wear jackets and ties,” the counter-complaint stated. And while these establishments have clear dress codes targeting one gender, the the counter complaint continued, the “[Human Rights] Commission has, of course, never brought suit against,” them.  

“Our response was that there are signs like this in many restaurants in New York City,” Allon told the Brooklyn Daily Eagle. “The only difference is that the city said our clients’ signs were motivated by religious beliefs.”

The storeowners asked the court to look not at the motivations behind the dress code signs but rather at the signs’ effect. “Whether posted by a court, by a secular individual whose sensibilities and sense of propriety are offended by attire he or she finds inappropriate, or by those whose sensibilities and sense of propriety grow out of religious tradition and set of beliefs, dress code signs have the exact same implementation and effect.

“If these signs are acceptable in the two former instances — and they most certainly are — it is unthinkable to suggest they are unacceptable in the latter instance,” she said.

Many New York courts have suggested dress codes. New York City Small Claims Court, for example, suggests that “T-shirts with curses, belly shirts, plunging necklines and torn clothing are not appropriate” for court. The United States Supreme Court asks that “[m]ale attorneys…wear a coat and a tie. Female attorneys shall wear comparable attire.”  

The effect of these notices for courtrooms, the storeowners contend, is the same as the dress code notices posted in the Williamsburg stores: to maintain a level of decorum and not to discriminate.

It was effect and not motivation that caused Administrative Law Judge John Spooner to rule in favor of the storeowners. No evidence was presented that the signs explicitly discriminated against females, Spooner noted. The signs were, in effect, gender-neutral, even if the reason for posting the signs stemmed from religious mores.

“Regardless of [the storeowners’] motivation for posting the sign, if a sign does not have the effect of excluding individuals on the basis of their gender…the City Human Rights law is not violated,” Spooner said in his ruling.

While winning their case with their first line of defense, that the signs were gender neutral, the storeowners preserved their right to bring raise another argument — freedom of religion under the First Amendment — had they lost. “This selective prosecution against Hasidic stores did raise First Amendment concerns,” Allon said. “We preserved our right to raise the issue that the our clients’ free exercise of religion was being violated.”

Upon the release of Spooner’s ruling, Patricia Gatling, spokeswoman for the HRC, made no statement other than to announce that a settlement had been reached between the two parties.

The seven stores involved in the dispute are Sander’s Bakery, Lee Avenue Clothing Center, Tiv Tov Stores, Greenfield’s Foods, Friedman’s Depot Inc. and Etty’s Handbags.

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