07-23-2019
The Ninth Circuit Court of Appeals has upheld the City of Everett’s Lewd Conduct Ordinances that regulated what employees may be able to wear to work. “Bikini Baristas” are employees in drive-through stands serving coffee and beverage businesses in the city located in Washington. After the police investigated claims of lewd conduct (baristas and customers groping each other’s intimate body parts) at the businesses, a dress code was enacted requiring that “minimum body areas” be covered while working. The bikini’s worn by the women were much more revealing than a typical bathing suit. A “lewd act” under the municipal code was expanded to prohibit the public display of additional specifically identified body parts/areas of the body.
One business owner and some of the baristas sued the City for violation of the First and Fourteenth Amendments of the U.S. Constitution. The Ninth Circuit reviewed the case upon appeal and ruled against the owner and baristas. First, the group claimed that their due process rights were violated under the Fourteenth Amendment because of the code’s vagueness. The circuit court concluded that the terms used to describe certain body parts such as “anal cleft” and “bottom half” could reasonably be understood in the context of the other terms of the code and were sufficiently clear to be enforced. Similarly, the court concluded that the First Amendment claims would also fail. The plaintiffs argued that their intent was to convey a particular message by their attire. According to the circuit court, even if the women could show they intended to convey a message of empowerment and confidence, it was unlikely to be understood as that by the individuals receiving it. The baristas worked in a retail business soliciting tips. The court concluded the attire in that environment was “not sufficiently communicative to merit First Amendment protection.”