'What Are Clothes?' Asks Most Delightful Supreme Court Argument in History

The line between apparel and technology gets parsed by the Supreme Court.

Protective gear forms a barrier between a steel-worker and a furnace at the plant of the steel company Salzgitter AG in Salzgitter, Germany, in 2011. (Reuters)

So, clothes. What are they, really? They're things you wear, certainly. They're things that cover some area of your body, protecting it from the elements, protecting it from impropriety, protecting it from scrutiny. But that is an incomplete—and, consequently, unsatisfying—definition. Are shoes clothing? What about sunglasses? What about suits of armor? What about wigs and watches and Google Glass?

What is the difference, in other words, between "clothing" and "tool"? Where is the line between garments and gear?

These are questions that, my surname notwithstanding, I am inadequately equipped to answer. They're complicated. They're nuanced. They're tricky—so much so that a legal case revolving around them, Sandifer v. United States Steel Corporation, made its way, this year, to the docket of the U.S. Supreme Court.

In 2012, a group of 800 steelworkers at a U.S. Steel plant in Gary, Indiana brought suit against their employer, asking for "work time"—that is, paid time—to include the time it took them to put on and take off their work clothes. For steelworkers, "work clothes" aren't just suits or coveralls; they include flame-retardant jackets and pants, protective leggings, Kevlar sleeves, gloves, steel-toed boots, hard hats, safety glasses, earplugs, and hoods. When you work with molten metal, getting dressed for work—and, then, un-dressed—takes some time.

The U.S. Court of Appeals for the 7th Circuit, however, rejected the workers' request, ruling that donning and removing that protective gear constitutes a simple change of clothes—something for which, per agreements U.S. Steel has negotiated with no less a body than the steelworkers' union, the company does not pay. (The relevant law for Sandifer is the Fair Labor Standards Act, Section 203(o) of which notes that, when it comes to compensated work hours, "there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday.")

Is it garb or is it gear? Neil Armstrong models the suit he will wear for the Gemini 8 mission. (NASA)

So the question is: Is getting dressed in work-specific protective gear like getting dressed for any other job? Does that protective equipment constitute clothing ... or something else? Are the steelworkers' flame-retardant tools, ultimately, garments or gear?

In oral argument before the Supreme Court yesterday, Eric Schnapper, the workers' lawyer, tried to emphasize the distinction between clothing and technology. The gear required to keep the workers safe on the job, Schnapper argued, doesn't fit the standard definition of "clothes." Lawrence DiNardo, representing U.S. Steel, argued the opposite: that putting on and removing most protective gear is "changing clothes" in traditional senses of the practice—and that, therefore, it shouldn't be included as compensation-eligible work. The Obama administration, meanwhile, sought more nuance in the gear-as-clothing deliberations. Anthony Yang, assistant to the solicitor general, agreed with U.S. Steel that most work gear may be deemed "clothing"—but argued that there may be exceptions to that rule.

So: one court; three different definitions of "clothing." Which led Elena Kagan to wonder aloud "why the government hasn't issued a regulation on this." 

It's a good question, and I think I know the answer: The Labor Department didn't weigh in so that the Supreme Court could do so instead. The agency neglected to pass judgment on the garment-or-gear quandary so that Sandifer could be filed, and argued, and passed up the appellate-court chain, and added to the Supreme Court docket, at which point, on November 4, 2013, it could be argued again. The world has not reached a satisfying decision on the "what are clothes?" question, basically, so that yesterday's oral argument could come into existence.

That must be the explanation, because yesterday's oral argument was ... amazing. As in, one-for-the-record-books, court-case-as-epic-literature amazing. The proceedings involved references to chain mail and knife scabbards (knife scabbards!) and toupees. They involved "walk like a duck, talk like a duck" lines of logic. They involved nine robe-wearing humans grappling with their own understandings—and perhaps their own biases—about what constitutes clothing. (Justice Sotomayor mentioned makeup and jewelry. Justice Scalia mentioned hunting gear.) They involved, basically, a group of people who are very much not steelworkers trying to figure out what it means to adopt the equipment of a steelworker—grappling, in the process, with the bigger question: What is clothing for? Where do we draw the line, actually, between the technology we wear and the technology we carry? 

Schnapper pointed out all the wearable tools that we don't count as clothes:

MR. SCHNAPPER: In ordinary parlance, not everything an individual wears would be referred to as clothes. There are examples of that in this courtroom: Glasses, necklaces, earrings, wristwatches. There may be a toupee for all we know. Those things are not commonly referred to as clothes.

JUSTICE SCALIA: I resent that.

(Laughter.)

MR. SCHNAPPER: And nor are neck braces, which I've seen one in this courtroom. It's also the case that there are any number of things that people wear to do their jobs that are not clothes. The police officers outside the building are wearing guns, radios. I suspect they have handcuffs; I couldn't see those. The quarterback who played for your team yesterday had a quarterback playbook wristband with the plays on—on his—on his wrist.

Workers wear tool belts. It's—one of the recurring—recurring issues that has come up in these cases are knife scabbards. We don't think anyone would, in ordinary parlance, call those things clothes. And we think that's the significant limitation on this.

And so even though you could be wearing those things, those are not clothes.
 
JUSTICE SCALIA: Tools and what?
 
MR. SCHNAPPER: Scabbards.

JUSTICE SCALIA: Scabbards.
 
MR. SCHNAPPER: Knife scabbards. The Tenth Circuit holds a knife scabbard as clothes because it's like holsters.

To which the justices responded with several "walks like a duck" rejoinders. Like this:

JUSTICE GINSBURG: But we're dealing with here, from the picture, that looks like clothes to me.
 
MR. SCHNAPPER: Your Honor, I think that your question raises an excellent point. One of the problems with the picture is that it withholds from you other information that you would use to assess whether to describe it as clothes. You don't know what—

JUSTICE KENNEDY: Except you would look and say, those clothes probably have something special underneath them. I mean, in ordinary parlance I think that would be a proper use of diction.

And this:

JUSTICE ALITO: Why is it that the jacket and the pants in that picture are not clothes?
 
MR. SCHNAPPER: In our view—well, let me—part of it—first of all, they are designed for a protective function, to protect you from catching fire.

JUSTICE ALITO: This is one of the aspects of your argument that seems really puzzling to me. I don't know when a human being first got the idea of putting on clothing. I think it was one of the main reasons, probably the main reason, was for protection. It's for protection against the cold, it's for protection against the sun. It's for protection against—against thorns. So you want us to hold that items that are worn for purposes of protection are not clothing?
 
MR. SCHNAPPER: No, Your Honor. We've been—we've tried to be quite specific about that. We distinguish between items that are designed and worn to protect from a workplace hazard. And the court of appeals argued that everything is, in a sense, protective. That is not the standard that we propose. Workplace hazards are different. And in ordinary usage, when things are being used for that kind of protection, they are typically described in other terms.

JUSTICE ALITO: So if it—if it protects against something other than workplace hazard, it can be clothes. But if it protects against a workplace hazard, it isn't clothing. Is that your test?
 
MR. SCHNAPPER: And it's designed to provide that kind of protection. Let me explain why—why we've added that. There are some instances in which one would wear ordinary clothing on the job, things that are no different from what you would buy at J.C. Penney's, because it was to some degree protective from a workplace hazard. That's true here. Whatever else you are wearing, underneath it you have to wear cotton or wool. 

And this:

JUSTICE SOTOMAYOR: I have—I do have an understanding that you're right, that jewelry are not clothes, that toupees might not be, that makeup is not, and they cover the body. So I agree that a definition that says anything that covers the body might go too far.
 
But I do have a problem with things that look like clothes. If I don't buy your argument that fire resistant pants and shirts are not clothes, where would you propose I draw the line? Assume I say you are wrong with if it looks like clothes, it is clothes. Let's apply a little bit of common sense to life.
 

The justices also emphasized the challenges of distinguishing between work-specific types of clothes. As in this:

JUSTICE GINSBURG: Mr. Schnapper, can I ask you another question? We're talking about time and whether it will be paid. And we have one worker that puts on this protective garb. And then we have another, the baker. It takes them about the same amount of time to do—put on everything he has to put on. But everybody agrees, he doesn't get paid for that. What is the—that that would come within the clothing.

So we have all kinds of people who have to wear special uniforms, a doorman in an apartment house. It takes them time to put it on. Why should there be a distinction in getting paid between the protective garb and something that you must wear on the job? That—yes.

And this:

JUSTICE KAGAN: But I thought that your distinction was well, there are two sets of clothes, to use a better word. There are two sets of clothes and  they both look like clothes, but one is for protective—a protective function, and one is for a sanitary function. And that's the distinction that you want to draw. And I guess another way of saying Justice Ginsburg's question is: Why should we look at a word that just says "clothes" and make that distinction as to what the purpose of changing clothing is, whether it's for sanitary reasons or whether it's for protective reasons or whether it's because people want doormen to look nice?

And this:

JUSTICE SCALIA: Yes. But common usage doesn't separate from the meaning of clothes only those—those protective garments that are required by the occupation, that are required by the employer. That's a -- that's a very strange definition of clothes. Hunters, when—when they're hunting birds wear—wear trousers that are brush-proof. They, you know, resist briars and other things. Those are protective. And those—those pants wouldn't be worn elsewhere. Now, I can understand you're arguing those are not clothes because they perform a protective function other than heat and cold. But you're—you're proposing a very odd definition of clothes. It excludes only those protective garments that are protection against workplace hazards. That's very strange.
 
MR. SCHNAPPER: All right. Your Honor—well, Your Honor, we are not undertaking to give you a comprehensive definition of what items are and aren't clothes. The—the variety of things people wear is—is extraordinarily complicated, and we—we have not taken that on. What we have tried to do is suggest—

JUSTICE SCALIA: No, but you have taken it on. You're trying to tell us what is the ordinary meaning of clothes. That's what you're appealing to, the ordinary meaning.
 
MR. SCHNAPPER: Your —­

JUSTICE SCALIA: And I suggest the ordinary meaning is not—is not what you—you have proposed.
 
MR. SCHNAPPER: Well, we may disagree of the substance, but—

JUSTICE SCALIA: It includes protective garments, and—and you want it to include all protective garments, I guess, except those that protect against workplace hazards. That's peculiar.

MR. SCHNAPPER: All—all we're asking the Court to hold is that certain things are not clothes. We're not undertaking to sort out among the things that hunters wear, where you would draw the line. I mean, ordinary—ordinary parlance is—is complicated. But we think—look, it's certainly the case, we believe, that not everything people wear is clothes.

And this:

CHIEF JUSTICE ROBERTS: What about heavy duty pants, you know, blue jeans that somebody—the thick ones that you use because the work environment will involve, you know, grease and hot things and all, but that you wouldn't necessarily or a particular worker wouldn't wear off the steel mill site? Is that clothing designed to protect against work hazards or is it—some people would wear that outside the steel plant, other people wouldn't.

DiNardo, a lawyer for U.S. Steel, argued that "collective bargaining does not focus on whether or not a shirt is clothes or a pair of pants are clothes or protective eye gear." Given that, he continued, "the term 'clothes' as used in the statute was intended to encompass the work outfit industrial workers were required to change into and out of to be ready for work." 

While the justices seemed more amenable to that argument than they were to Schnapper's, several also seemed to think that defining "clothes" as anything that a worker might wear as part of a "work outfit" was overly broad. "Nobody would consider eyeglasses or a wristwatch or some of this other specialized equipment to be clothes," Scalia pointed out. "I mean, the word is what it is."

Sotomayor agreed. "Your definition," she said, "would include somebody spending an hour putting on a suit of armor if he’s going to be a jouster. It would include the space people who put on that complicated white suit."

(Jouster! Space people! Glorious!)

So where does all this get us? Are we any closer, after yesterday's proceedings, to defining the line between clothing and tech? 

It's hard to say. The Court won't rule on the case for several months, and yesterday's arguments seemed to be conclusive only about the definitional delicacy of the matter at hand. When Kagan asked why the government hadn't yet adjudicated the togs-or-tech question, Schnapper's answer was, "I do not know, Your Honor." Scalia's reply, however, might have been just as accurate: "Too complicated," the justice said, "is why."