Aggressively Defending My Clients Since 1990


On Behalf of | Oct 24, 2021 | Firm News

And the sign says “long hair freaky people need not apply”
So I put my hair under my hat and I went in to ask him why
He said you look like a fine outstanding young man I think you’ll do
So I took off my hat I said “Imagine that Huh Me working for you”…
—Five Man Electrical Band

In Milwaukee County, male attorneys have been determined by judges to be better attorneys if they wear coats and ties.  If you think I am wrong, just ask former Milwaukee County District Attorney Warren D. Zier.  I knew Mr. Zier.  He was more experienced than me as he became an attorney in 1986.  He was good at his job and was not afraid to tell you he was good at his job.  But what I was really jealous of was Mr. Zier’s suits.  Really nice suits.  But rather than a tie, Mr. Zier wore an ascot to court.  By not wearing a tie, a judge stated Mr. Zier’s actions “bordered on contemptuous.”

I am not criticizing judges for doing something any other human being does[1]: judging someone based on their appearance.  Scientifically, that is called physiognomy.  Physiognomy was regarded by those who cultivated it both as a mode of discriminating character by the outward appearance and as a method of divination from form and feature.  Having been handed down to us by Aristotle, physiognomy in the 18th and 19th centuries was proposed as a means of detecting criminal tendencies, but each system was examined and discarded because the data on which it was based was not statistically accurate.  However, physiognomy is enjoying a scientific rejuvenation with the advent of facial recognition technology.[2]

Legally, physiognomy has another word: discrimination.  “Discriminatory dress and grooming policies also invite biased enforcement against members of other marginalized groups. Black women and girls, in particular, are often targeted because of intersecting race and sex stereotypes regarding proper feminine appearance and behavior. Additionally, gendered dress and grooming policies often harm non-binary, transgender, and gender-nonconforming students by reinforcing rigid and binary sex stereotypes, inviting unnecessary and excessive policing of their appearance, and ultimately sending the message that they don’t belong.”

[3] In fact, it has been found that black hairstyles and textures are 3.4 times more likely to be perceived as unprofessional, and black women are 1.5 times more likely to be sent home due to their hair than other women. Even further, black women with chemically straightened hair are more likely to be hired than black women who opt for their natural hair texture.[4]  Therefore, while commonly seen in school dress codes[5], appearance discrimination is also practiced in society generally.[6]

While constitutional means, such as Fifth and Fourteenth Amendment “liberty clauses” (equal pro-tection and substantive due process)[7] and First Amendment free speech[8], another legal basis of attack has been through fair employment or civil rights statutes such as Title VII. Title VII, unlike the Constitution which only reaches public employers, applies to private employers as well. However, Title VII only provides protection to a point but courts are very deferential to employers.[9]​Likewise, people use face impressions to predict a range of real-world outcomes, from political elections to criminal sentencing. Initial impressions of faces can bias how we interact and make critical decisions about people, and so understanding the mechanisms behind these impressions is important for developing techniques to reduce biases based on facial features that typically operate outside of awareness.[10]

[1] You Are Judged by Your Appearance (based on appearance tall, blonde, skinny people make more money on the job than other people)

[2] Facial Profiling: Can you tell if a man is dangerous by the shape of his mug?

[3] Dress and grooming policies based on gender stereotypes,

[4] JOY Collective. C.R.O.W.N. Research Study. Publication. 2019.; Guy, Jack. 2020. “Black Women With Natural Hairstyles Are Less Likely To Get Job Interviews”. CNN Business.  Black women with natural hairstyles were perceived to be less professional, less competent, and less likely to be recommended for a job interview than Black women with straightened hairstyles and White women with either curly or straight hairstyles. The Natural Hair Bias in Job Recruitment

[5] Under the 9th and 14th Amendments, students have “the right to wear one’s hair at any length or in any desired manner is an ingredient of personal freedom protected by the United States Constitution,” and that to limit or curtail that right, the state bore a “substantial burden of justification.” Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969).  Older cases were collected at Prohibition of long hair absent showing of actual disruption 84 Harv.L.Rev. 1702 (1971)

[6] Bill O’Reilly criticized after mocking congresswoman’s ‘James Brown wig’,

[7] Kelley v. Johnson, 425 U.S. 238, 244 (1976) (“Whether the citizenry at large has some sort of ‘liberty’ interest within the Fourteenth Amendment in matters of personal appearance is a question on which this Court’s cases offer little, if any guidance. We can, nevertheless, assume an affirmative answer for purposes of deciding this case . . . .”); Pence v. Rosenquist, 573 F.2d 395 (7th Cir. 1978) (holding that requiring school bus driver to shave mustache violates due process if there is no justification for the requirement)

[8] Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969) (students’ right to wear armbands to protest the war in Vietnam upheld)

[9] Karl E. Klare, Power/Dressing: Regulation of Employee Appearance, 26 New Eng. L. Rev. 1395, 1398 (1992)

[10]Facial Trustworthiness Predicts Extreme Criminal-Sentencing Outcomes,
; The conceptual structure of face impressions,