This is not my blog.

I saw this MSN story today about how Southwest Airlines has now reproached two different women for dressing "too provocatively" to fly on their airline. Recently, a flight attendant allegedly approached Setara Qassim, a 21 year old woman, and asked her if she had a sweater to go over her green halter-style dress and Ms. Qassim was subsequently forced to fly wrapped up in a blanket for the entire flight. A week earlier another passenger, 23 year old Kyla Ebbert, was pulled aside by an airline employee and told she was dressed too provocatively to fly on the plane and was forced to adjust her sweater and short skirt before boarding. Ms. Ebbert took her story to NBC's Today Show where she spoke of the embarrassment that this event caused her.

Southwest and other airlines claim to have no set dress code but leave the decision of what attire may offend passengers up to its employees on a case by case basis. American Airlines claims that its policy is more limited to the graphics that people may have printed on their shirts and may ask to have someone mitigate the problem with refusal to board as a last option. Other airlines focus mostly on passengers being barefooted, drunk, or smelly.

While there is something to be said for the airline being a private industry able to regulate the conduct of its patrons there is also the issue of the airline being a "common carrier" in legal parlance. Meaning that they offer transportation to the public on a regular schedule and are subject to various federal and state laws relating to public accommodation and may not have the right to refuse service to people based on protected status such as religious attire, race, or disability. While it is possible that a person wearing an offensive shirt could claim a first amendment protection on the basis of the content of speech the same may not be true for provocative attire. In Cohen v. California, the 1971 U.S. Supreme Court case dealing with a man arrested for wearing a jacket that said "Fuck the draft", the Court overturned the conviction and Justice Harlan famously said "one man's vulgarity is another's lyric."

Provocative dress may not have a message to convey, like a tattoo or a t-shirt design, but can it go to an issue of gender? Perhaps it can (read this article and this one too from the Duke Journal of Gender Law and Policy for an interesting perspective) but either way it raises some interesting issues over how far common carriers will take this initiative and whether they will back off of these policies or try to better define them and publish them so that passengers understand the rules prior to arriving at the airport. Lastly, check out this blog post for a very detailed discussion of the events surrounding the tale of Ms. Kyla Ebbert.

Labels: law, news, rants