I recently read about an instance in which a barefooter used a liability waiver when confronted in a hotel. Now, I’ve never cared much for liability waivers, and this example is fairly illustrative in that regard.
Here’s the story.
I’ve written before about the shoe charities, companies like TOMS Shoes and their marketing effort that uses the lure of donating shoes to help sell their shoes. One of the items they talk about on their blog is the transmission of helminths (e.g., hookworm), and how important their shoes are for combatting them.
I have found an interesting commentary on that.
We’ve seen many times that the employees of businesses can get quite adamant in their ignorance. Their excuses for tossing barefooters will shift from non-existent health code to non-existent corporate rules to non-existent insurance excuses. Then, if you get through all that, often some corporate weenie will make up a rule right on the spot. (I’ve had them tell me, no, it is not written down anywhere, but it’s a rule now.)
On Friday I wrote about Business Owners and Barefoot Insurance, which followed up on an even earlier entry about Business Owners and “Trust”. The general point of those entries was that business owners have an unreasonable fear of barefooted customers. They have no idea what the relative risks are of being sued, and, when pressed, end up assuming that “No Shirt, No Shoes, No Service” signs were started because businesses were being sued right and left for being barefoot. Of course, that was not the case.
So, what should they be afraid of?
Soles4Souls is another one of the those shoe charities founded by the president of, you guessed it, a shoe company. What prompts me to write this today is one of their fundraising efforts in which they have enlisted the help of the American Association for Nude Recreation.
First of all, on the fundraising page, the name of this particular campaign is “Bare from the Toes Up”. This is a bit annoying, since if you’ve ever been to a nudist resort, you will see a large proportion of the guests wearing shoes. If you are shod, you are not nude. Nudists buy into the usual barefoot myths just like so many others.
But my real gripe is what is said on that page about why it is so
necessary to donate shoes for the Soles4Souls cause.
In some ways, TOMS Shoes One Day Without Shoes is delightfully subversive.
The common mythos is that walking barefooted is horribly dangerous. Store owners are sure that they have hazards everywhere (if so, why aren’t they removing them?). Yet, in 16 years of shopping barefooted, I’ve never had an injury inside any store. Oh, wait. I’m lying — I cut my finger on a coupon dispenser in a grocery store once. A nasty gash, too. And I didn’t even sue them. After all, what were my damages? The cost of a band-aid? People are also sure that walking on streets is incredibly dangerous. They have fears of glass and needles everywhere. (more…)
The story is about a pregnant woman, Michelle Lee, in Roselle, Illinois (a suburb of Chicago) who was kicked out of a bar because she was pregnant. A bouncer asked her if she was, and when she said “yes”, he made her leave. According to the story:
“He just said, if anything happens, if a fight breaks out and you get hurt, we are responsible,” Lee said. “That can happen anywhere. If I am going somewhere, I am taking responsibility.”
Sounds rather familiar to what we barefooters hear, doesn’t it? In this instance, the ACLU is concerned because of sex discrimination (since, obviously, it is only women who get pregnant, so far).
However, the part of the article that raises the question related to barefooting is this part:
According to the Illinois Human Rights Act: “It is unlawful to discriminate in the full and equal enjoyment of facilities and services by any place of public accommodation.”
* * *
Chicago lawyer Martin Dolan, who handles civil rights and personal injury cases, said that a private bar may set its own rules, including behavior standards or a dress code, but that those rules must be established in advance and be obvious to customers, such as a visual posting.
“The key to this is being able to justify the legitimate reason, not just (pull something) out of the air,” Dolan said.
And that leads to the question from Michael:
What does your experience tell you about how this applies to barefooters? Can a business legally discriminate against us if they don’t have “established” rules? In other words, can we share with managers or security that they have no right to discriminate if they are just making rules up on the spot?
The answer? It depends (doesn’t everything?). To a large extent it depends on the state that you are in.
As a general rule, businesses are allowed to discriminate however they want and can kick out whomever they want for whatever reason, as long as it is not because of race, creed, color, sex, sometimes sexual orientation, etc.. That is based upon states’ public accommodation laws. However, some states go beyond that restricted set of reasons. For instance, California has The Unruh Act, that has been interpreted to mean that you cannot be tossed from a public accommodation merely for unconventional dress. The seminal case there was In re Cox, 3 Cal.3d 205, 474 P.2d 992 (1970), from 1970. Since that time, California courts have been emasculating that ruling, and it has never been tested in regards to going barefoot, but it is at least something. (On a more pessimistic note, I wouldn’t be surprised if some court there would say that a barefoot ban would be “reasonable”.)
I am also aware that New Jersey has a similar state law. Now, from this article, I see that Illinois also has something similar, except that I note that the language for Illinois is the strongest I have seen: the right to be in a public accommodation doesn’t seem to be an afterthought to the other conditions (race, sex, etc.). The Illinois law is (775 ILCS 5/) The Illinois Human Rights Act, and as the article states:
It is a civil rights violation for any person on the basis of unlawful discrimination to:
(A) Deny or refuse to another the full and equal enjoyment of the facilities, goods, and services of any public place of accommodation;
As I look at case law, I cannot find anything that even supports what the lawyer in the article says, that rules must be specified in advance and posted. It appears to me to be even stronger than that, and in fact there is language in a major court decision, Chicago v. Corney, Jr., 13 Ill. App.2d 396, 142 N.E.2d 160 (1957), (that opinion was in regard to racial discrimination) that says: “Persons seeking such accommodations, etc., cannot be excluded from the premises so long as they conduct themselves in a peaceable and orderly manner.”
Who knows how an Illinois court might rule in a barefooting case. I do note that the Chicago Public Library has a barefoot rule — in this regard I don’t see how it could be legal, but I also know that judges are extremely reticent to legitimize barefooting and they end up succumbing to the usual myths.
Finally, let me finish with my state, Ohio. I only recently realized that their human rights statute goes a bit beyond the standard race, sex, etc. It says, in the Ohio Revised Code § 4112.02(G), that it is an unlawful discriminatory practice:
For any proprietor or any employee, keeper, or manager of a place of public accommodation to deny to any person, except for reasons applicable alike to all persons regardless of race, color, religion, sex, military status, national origin, disability, age, or ancestry, the full enjoyment of the accommodations, advantages, facilities, or privileges of the place of public accommodation.
I’ve added the emphasis. There are some court rulings that suggest that that phrase really does require the business have a consistent policy (such as a sign) for it to be enforceable.
That might be fun to test someday.
A couple of weeks ago Reebok was sued for making false claims about their EasyTone “fitness” shoes. The lawsuit asks the court to make it a class action lawsuit. According to a story in the Quincy, MA, Patriot Ledger:
A lawsuit filed Tuesday on behalf of Massachusetts consumer Sandra Altieri claims Reebok made false claims about the efficacy of its toning shoes in delivering more of a workout to leg and butt muscles than a typical shoe.
Supposedly, the way they work is to create an instability when walking, causing the muscles to work harder. Reebok claims 28% harder.
Toning shoes are presented as a way to improve muscular definition by using an unstable sole design. Companies such as Reebok that sell toning shoes say this instability causes leg and butt muscles to work more vigorously than they would if the wearer was using a typical sneaker.
(Whole article here.)
The problem is, a study by the American Council on Fitness found no such benefit.
From a barefooters point of view, the whole idea is insane. Why would you want to create an instability when you walk? One of the real joys and benefits of walking barefooted is the great feedback and proprioception that it gives you. When I’m working in the kitchen, some of the joy of barefooting is the feeling of dancing from counter to counter. I rise up on the ball of my foot and pivot. I shift weight from one side of my (bare) foot to the other. It gives such a feeling of control, of awareness. The same applies when I play tennis, or do a number of other activities. And along the way, this is strengthening my foot. It’s making my foot do its normal function!
Compare that to the false sense generated by the EasyTone. Bah!
Since Daniel Howell was escorted off his plane yesterday for being barefoot, I thought I’d go over the situation for that.
Daniel was flying to NYC to appear on The Today Show to talk about The Barefoot Book. He had actually boarded the plane, and after he had his seat belt on, he was approached and asked if he had any shoes with him. He didn’t, so they tossed him.
Is that legal? Yes, it is. Your airline ticket is basically a contract with a private company, and the terms of that contract are detailed in that airlines “Contract of Carriage.” You can easily use Google to find the contract for any airline you are interested in flying. But it is probably not worth it. Practically every airline has a barefoot rule.
Daniel was flying US Airways, and you can see their Contract of Carriage can be found here (click on the PDF). The relevant section, for any airline, is under the heading “Refusal to Transport”, and for US Airways it says:
US Airways may refuse to transport, or remove from any flight, any passenger for the following reasons: Any passenger who may pose a threat to the comfort and/or safety of other passengers or employees including (but not limited to) passengers who: Are over the age of five (5) and barefoot, or otherwise inappropriately clothed, unless required for medical reasons;
Notice that they say that they may refuse to transport, not that they will, which really makes it a crap shoot depending on the employee who sees you. Also notice that they say the rule is for “comfort and/or safety.” That’s not a crap shoot; that’s just crap. Of course it is more comfortable to be barefoot, and medical experts actually suggest removing your shoes when flying to help keep the blood flowing. Now, maybe they don’t care about your comfort, but thing that the other customers might not be comfortable seeing bare feet. Crap there, too: they don’t ban flip-flops, which show the same amount of foot. And if were really about safety, then there would not be the exception for children under 5 years old, unless the airline wants to go on record saying that they don’t care about the safety of young children. (Think about that!)
It’s all just more mindless following the herd.
The origin of the rule predates the airline deregulation in 1978. Back then, flying was regulated by the Civil Aeronautics Board, and they dictated the Contract of Carriage. That Contract had the barefoot rule (but without the exception for children). After deregulation, most airlines just kept the original Contract, though over the years, many have slowly modified them. (You can see remnants of the CAB rules in that Refusal to Transport is still often called Rule 35.)
Some airlines (a very few) removed the barefoot restriction, Aloha Airlines being one of them. Unfortunately, Aloha ceased operating in 2008. Non-US airlines base their Contracts of Carriage (actually called “General Conditions of Carriage”) on a different model, and generally do NOT have a barefoot clause.
As I said, different airlines have modified the rules, so there are slightly differently worded versions.
Persons who do not meet HA standards for dress and attire: . . . For safety reasons, footwear must be worn unless the passenger is unable to do so due to a disability or physical condition that prevents them from wearing footwear.
Delta may refuse to transport any passenger, and may remove any passenger from its aircraft at any time, for any of the following reasons: Delta may refuse to transport any passenger, or may remove any passenger from its aircraft, when refusal to transport or removal of the passenger is reasonably necessary in Delta’s sole discretion for the passenger’s comfort or safety, for the comfort or safety of other passengers or Delta employees, or for the prevention of damage to the property of Delta or its passengers or employees. By way of example, and without limitation, Delta may refuse to transport or may remove passengers from its aircraft in any of the following situations: When the passenger is barefoot.
AirTran may refuse to transport or may remove from any flight any passenger for one or several reasons, including but not limited to the following: If a passenger’s conduct is disorderly, abusive or violent, or the passenger: Is barefoot, or is clothed in a manner that would cause discomfort or offense to other passengers.
In addition to persons who may be refused transportation on Carrier under Section 6 above, refusal to transport or removal of the following Passengers may be necessary for the comfort and safety of the affected Passenger or other Passengers: Persons over two years of age who are barefoot;
So, how do you fly barefoot? Barefooters have developed a few strategies. Often you can just board barefoot, since the employees are really pretty busy. Don’t look down at your feet, but keep looking directly into the eyes of the employee, particularly when handing over your ticket, and when passing by the flight attendant as you enter the plane. Once you are seated, you are probably fine if they didn’t see you come in, because, as I noted earlier, many people do take off their shoes once they are seated.
However, carry a pair of flip-flops, or something else you can put on for just a moment if challenged. Put them on, pass the person challenging you, and then just take them off again. Yeah, it’s a hassle (I personally hate to have to carry footwear just in case, and rarely do so), but at least then you don’t miss your flight.
One time, on Southwest Airlines, an otherwise very friendly airline, I’d boarded and flown barefoot without being challenged. (They have the “comfort and safety” excuse with an exception for those under 5.) However, on getting off the plane, I was noticed by a flight attendant who went ballistic, telling me I couldn’t be like that. OK, I’m leaving. I think part of his frustration was that there wasn’t a darn thing he could do about me. Hah!