Male Judges Advise Women Lawyers to Lose the Distracting ‘Ally McBeal’ Look

I’ve often commented on what I thought was a double standard in courtroom dress. Men all know what to wear: a suit and tie. Some men go to court appearing color blind, uncoordinated, and committing fashion faux-pas like brown belts and black shoes. The only time I have ever seen a lawyer appear in Court without a tie was when he was in a full arm cast that held his arm up to the side, and the Judge still ribbed him about it.

Most women attorneys appear professional, of course. But the way women diverge in attire is much different than cheap materials and bad coordination. There’s just a wide divergence in what happens. It’s just an observation. I’m surprised that male judges are the ones speaking out and I find it weird… creepy even that they call it “distracting.”

If you get “distracted” by the female form, maybe that’s your problem. My problem is that the decorum isn’t there. I think there are hundreds of different ways I could dress that would not be “distracting” that would still be inappropriate for a court. But the reality is, we all put on a certain uniform.

Maybe an example will clarify. If I work at Taco Bell, I might find it “distracting” if a female employee wore a short skirt, but it wouldn’t be inappropriate if she had a Taco Bell uniform shirt on. If she came to work in the most undistracting figure concealing clothes ever, but didn’t have her Taco Bell uniform on, how is that ok?

Anyway, this is what you get when you blog. I’m sure I stepped in it here, but oh well.

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In the employment context, this would appear to allow employees to sue on behalf of other employees under the UCL without showing that the other employees had standing and get restitution. Of course, that’s kind of circular because if they have something to be given back (e.g. wages), they would appear to have standing. There are probably other instances I’m not thinking of yet. But what about the commonality of interest question? Does this moot Brinker’s class cert aspect? Not in theory, I guess—but it might in many actual cases. Once again I’ll plead for this Court to address these issues and make a clear rule when it decides that case.

I just thought I would add that this outcome is exactly in line with what Prop 64 proponents argued: that the only thing it did was eliminate Trevor Law Group-like situations. This ruling does not undo that. You still can’t set up front groups. You just need lead plaintiffs, same as you would anyway—just with anyone else in the class. And the Pyrrhic argument used to apply Prop 64 retroactively—that it didn’t change substantive rights—has come around to bite. If Prop 64 was supposed to go much further, it needed to be clearer in that regard, and, apparently, a political calculation about what could pass about what was clean enough to get through the courts was made. It’s up to you to judge if that calculation was proved wrong by this outcome.

I’m not sure that this is on the top of voter concerns right now, or that a case against tobacco companies is a good causus belli, but if the “mischief” does come back, send a new prop to the voters. Hell, that’s the only way we govern in California.

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