You know, there are some mornings where I get up, brew the coffee, grab my laptop and wander in to my home office with every intent of pecking out a blog post without a clue on what the topic of the day will be. I usually arise at 5:30AM for this purpose. Doing so affords me a couple hours of “quiet time” for reflection and inscription (I realize that doesn't necessarily translate into quality results – but I go through the motions nonetheless). Some days the blog post is already in my head. This morning found me devoid of any ideas whatsoever.
But the blog Gods seem to be watching over me, because on mornings such as this, they send me a story that practically leaps off the news pages for me to opine on. Today it was this headline, “Bikini baristas appeal city ordinance issuing dress code,” followed by this opening salvo:
How much “anal cleft” is one allowed to show while at work? That's the question one Washington court is trying to answer.
A U.S. Circuit Court of Appeals is reviewing an ongoing legal saga between bikini baristas and the city of Everett over the anatomical phrase “anal cleft” and whether dress codes imposed on businesses violate their civil rights.
They had me at anal cleft. Regular readers who know me understand that I was immediately “all in.” After all, as a consummate employment issue expert (not really), I intrinsically understood that anal clefts and work attire would be a pressing topic with which many employers may be struggling.
The issue is over an Everett, Washington city ordinance that was passed in August 2017. It restricts what employees of “quick-service” restaurants can wear by requiring that the “bottom one-half of the anal cleft” be covered. The ordinance requires employees who work at fast food restaurants, food trucks and coffee stands to wear at least a tank top and shorts while at work.
While the issue is currently restricted to food service, I expect plumbers all over the nation are watching this case closely.
Several “bikini barista coffee shops,” one of them named Hillbilly Hotties, are involved in the suit, arguing that the order is intentionally vague and too difficult to enforce. They also are claiming that it violates their right to free expression under the First Amendment.
They are apparently leveraging their argument on the alleged problems of accurate enforcement. Apparently, the city did not define within the ordinance exactly what constitutes the “bottom one-half of the anal cleft,” nor did they establish a method of measuring the anal cleft. An attorney for the plaintiff's claimed it would take “advanced math” to figure out whether the bottom half of the anal cleft was exposed. Courthouse News reported that the judge agreed, asking, “How can law enforcement determine where the bottom half is and measure it?”
It seems to me that the size of the anal cleft is potentially one big crack in the city's defense strategy. A U.S. District Judge ordered an injunction during litigation, ruling the ordinance likely violates the bikini baristas' First and 14th Amendment rights. The case is now, as indicated earlier, before a US Court of Appeals.
I personally am not sure how the city originally intended to enforce the measure. I searched the Everett, WA city job postings for “Anal Cleft Inspector” but found no such entries. I assume the position has already been filled. It is comforting to know that someone somewhere is looking into anal clefts.
The city has been defending its position by saying that the code is quite clear, and that they have a “responsibility to combat prostitution or illegal sexual activity.” Their position is that the bikini barista coffee stands are sending that message. One judge agreed, saying she was ‘concerned customers would see the women working as saying: “I am sexually available.”'
Ok, that is probably an element of the case that plumbers will not have to be concerned with.
Personally, the Libertarian in me thinks the city is overreaching. While I rarely expose the lower half of my anal cleft with my regular office attire and I prefer my baristas to be fully clothed, some of this comes down to marketing and personal choices. Having a skimpy outfit on and actually engaging in acts of prostitution are two different things. It strikes me that the city is enforcing one law on the potential it will prevent the violation of another. Perhaps they should just focus on the second law, and get off these employee's anal clefts, if you get my drift.
On a personal note, I really struggled to work the phrase “Just keep your pants on” into this piece, but alas, some mornings are harder than others to rubber mallet whit into your writings.
I will stay abreast of this story, even if I have to fly out to Everett and personally investigate this controversial issue. No need to thank me.
Even at 5:30 on a morning bereft of ideas, it is what I do.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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