“Buckle Your Safety Belt … and Pull Up Your Pants While You’re at It”

Can flight attendants tell you what to wear?

How low can pants go? Click image to expand.
How low can pants go?

The crew on a U.S. Airways flight out of San Francisco demanded that a passenger pull up his low-slung pants on Wednesday before takeoff—because they exposed his underwear. When the passenger refused and reportedly turned belligerent, the captain conducted a citizen’s arrest and called the police. Can a flight attendant tell you what to wear?

In most cases, yes. All major airlines have granted their flight crews the authority to ask a passenger to cover up or leave the plane. But they offer very little guidance as to what sorts of attire are unacceptable. Some airlines have no written dress code at all. Others, like American Airlines, are vague about it, forbidding clothing “that would cause discomfort or offense to other passengers.” (They do explicitly ban bare feet.) So there’s really no way of knowing if your low-slung pants, spaghetti-strap top, or miniskirt are going to get you bounced from your flight. The FAA has no rules or regulations regarding passenger garb.

While there’s nothing illegal about dress and grooming codes, per se, they can easily run afoul of federal civil rights laws. That’s because such codes may disproportionately and unnecessarily impact a protected group. In the late 1980s, for example, the Hyatt and Marriott hotel chains each fired at least one black female employee for wearing her hair in cornrows. Ultimately, the federal Equal Employment Opportunity Commission ruled that the firings were racially discriminatory, even though the cornrow ban applied to all employees. Low-slung pants aren’t quite the same as cornrows—the fired hotel employees argued that the white hairstyles the hotel recommended were physically impractical for them—yet a ban on them could be seen as targeting black passengers.

Another potential legal problem with airline dress codes is their utter vagueness. Since the policies give individual employees near-complete discretion, there’s no way to prevent flight attendants from applying the dress code in a discriminatory manner, whether consciously or unconsciously. Claims of uneven application arise fairly regularly on and off airplanes. For example, the developer of the Kansas City Power and Light entertainment district has been plagued by allegations that nightclub bouncers only enforce the strict dress code against racial minorities.

If the low-panted passenger decides to sue, he’ll be thankful that Wednesday’s incident occurred in California, which has one of the country’s widest-ranging public accommodation laws. Unlike federal civil rights law, which only bars discrimination on specified grounds like race and religion, California’s Unruh Civil Rights Act prohibits a company from excluding a customer unless it has a legitimate business reason for doing so. In 1970, the California Supreme Court found that discrimination based on unconventional clothing choices is arbitrary and illegal. U.S. Airways could certainly argue that low-slung pants are obscene, which would raise a separate set of issues. But they would have a tougher road in California than in other states.

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Explainer thanks Aden Fine of the ACLU and Alison Duquette of the FAA.