Barefoot in Businesses — Rights?

Michael Buttgen of The Primalfoot Alliance asked me about how this news story, Pregnant woman says she was kicked out of bar, might apply to barefooters.

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.

Showing the Flag

On New Year’s Day, one of our local parks had a New Year’s Day hike. Aside from the fact that these are always fun hikes, they can also serve another function: letting other people see just how functional bare feet are.

Most people don’t even consider the possibility that we can hike barefoot for any distance. When any of us go on one of these hikes, we can be ambassadors for barefooting.

Saturday was part of our welcome relief from the sub-freezing weather we’ve been having around here. The weather was perfect for barefoot hiking: around 45° (7C) and rainy. When we started out the hike, the ranger even mentioned to folks that they would be getting wet feet, not just me. I couldn’t help adding, “But mine will dry immediately.”

I’ve been doing enough of these hikes that the regulars recognize me. One even mentioned to me that she’d seen me on TV as part of the Statehouse story.

Another interesting thing that happens on these hikes illustrates how barefootedness is starting to break into the public consciousness. I had a few people mention to me and ask me about Christopher McDougal’s book, Born to Run. I had a few people ask be about Vibram Five Fingers; I answered them much the way I did in this blog entry.

All in all, a great hike, and a great ambassadorship.

Out and About

In a comment to Fall Hikes, Ben asks

[D]o you also walk barefoot in your daily life? I have done so for the past month but the reaction I get, especially now it is getting winter here, are not so positive. Any thoughts on that?

I’m going to pull it up here as a full entry since I think it is an interesting question.

Yes. Aside from the time I inline skate (I haven’t figured out how to do that barefoot), I probably wear footwear about 5-10 hours a year (yes, that’s “year”). In this older entry, Resisting Social Pressure, I talked a bit about how going barefoot strengthens the soul (along with the sole — HA!). But after a while it also gets easier with the public, too.

Yes, as you start going to new places like stores, you might have problems. Of course, don’t forget to carry with you the letter from your state’s Health Department, available here from the Society for Barefoot Living, that demonstrates no health code requiring shoes. But what I have found happens is that, for the stores you frequent regularly, they very quickly “adopt” you. They recognize you. You are their barefooted customer. They’ll greet you (moreso than when you used to enter shod).

So, I’ve ended up giving a lot of business to places that are friendly to me, and none to those who have given me problems. And they are positive experiences.

Regarding winter, about all I get is curiosity. Folks want to know if I put on shoes for the winter. The answer is no, and my ready response: “If I don’t need gloves, I don’t need shoes.” I certainly don’t put on gloves walking from my car in a parking lot into a store, so why would I need shoes? Yes, the ground conducts cold better than the air, but I have pretty thick soles that provide more insulation.

It can provide some interesting reactions though (and don’t consider these negative, but savor them). Last winter I exited a PetSmart and deliberately walked through a melting snowdrift (maybe 6 inches deep) for about 6 feet (felt like ice cream). Behind me I heard this audible gasp. I just grinned to myself.

What’s Old is New

In this comment, Beach Bum mentions an article he read in the late 70s about “Foxy Feet”, a barefoot sandal from back then. I’ve managed to dig up the story. Here are three newspaper articles that all seem to be based (though with different details) on an original AP news story.

From the May 23, 1977 Schenectady Gazette:

Foxy Feet Emerge As a Popular Item

ABSECON, N.J. (AP) — The sign may say “no bare feet,” but if you’re wearing “Foxy Feet,” they’ll never know.

Carol Luft, 30, of Absecon has come up with a new gimmick for bare feet that makes them look like they’re wearing sandals. Foxy Feet is an embroidered decoration for the top of the foot. It has no sole but slips around the ankle and hooks over the second toe.

And from the May 27, 1977 Sarasota Herald-Tribune:

Bare Your Soles with ‘Foxy Feet’

ABSECON, N.J. (AP) — The sign may say “no bare feet,” but if you’re wearing “Foxy Feet,” they’ll never know.

Carol Luft, 30, of Absecon has come up with a new gimmick for bare feet that makes them look like they’re wearing sandals. Foxy Feet is an embroidered decoration for the top of the foot. It has no sole but slips around the ankle and hooks over the second toe.

Mrs. Luft, who enjoys needlepoint and crocheting, invented Foxy Feet to give her own feet some decoration. Friends recently began placing orders and Mrs. Luft was in business.

“We tried all sorts of names,” she said, “and finally decided on Foxy Feet.”

And number three, from the May 25, 1977 St. Petersburg Times:

‘Foxy Feet’ bare sole

The sign may say “no bare feet,” but if you’re wearing “Foxy Feet,” they’ll never know. Carol Luft, of Absecon, N.J. has come up with a new gimmick for bare feet that makes it look as if they’re wearing sandals. Foxy Feet is an embroidered decoration for the top of the foot. It has no sole but slips around the ankle and hooks over the second toe. Mrs. Luft’s idea has gotten off on the right foot — stores in New York, New Jersey, Florida and California are stocking htem. To take care of the 26,000 orders she has already gotten, Mrs. Luft is now having Foxy Feet handmade in Haiti.

That looks like some pretty hefty demand, and suggests that bare feet really were pretty popular. Until the shoe police managed to stamp them out, of course.

Ignorance, Arrogance, or Both

I am going to pull up some comments from the entry on the death of James J. Kilpatrick, in which I mentioned his article about my lawsuit against the Columbus Metropolitan Library.

In Kilpatrick’s article, he mentions the child who was hurt by a staple on the library floor, but not on the child’s foot, but on his arm (lying there during storytime). “vas” then asked:

Bob, do you know if the child’s parents sued the library over this scratch?

My answer was, no, the child’s parents did not sue the library. In fact, I really did not find any lawsuits for injuries against the library. Their fear of lawsuits was strictly theoretical.

“vas” then further asked:

Then what made the library expect a lawsuit for a hypothetical barefoot injury? And why did they not issue a “no bare arms” or “no lying on the floor” rules? Or did they?

Why would the library expect a lawsuit for a hypothetical barefoot injury? That’s a good question.

I suspect the answer is a combination of ignorance and arrogance. (And no, they did not have any rules about kids lying or crawling or playing on their floors.)

The ignorance part we are all familiar with. Those who do not go barefoot regularly are absolutely convinced that the world is littered with a minefield of dangers. We barefooters know differently. There is also this myth that people sue at the drop of a hat, and even that is pretty much a myth. The reason that the silly lawsuits make the news is simply because it is news, not an everyday occurrence.

So that leads us to arrogance. Think about it. You are the director of some large organization. You got there with a lot of hard work. You’ve proven that you are “better” than others by rising to that position. How dare anybody question your decisions?

You think you can make the rules, so you do make the rules.

I did make quite a few attempts to educate the director of the library. They were all rebuffed. He just knew that there should not be bare feet in libraries. Arrogance.

I don’t think he even knew why there shouldn’t be bare feet in libraries, except a casual acceptance of the “No Shirt, No Shoes, No Service” signs.

Near the end of our correspondences, the director sent a letter to the library’s legal counsel, asking what legal basis they could use to maintain their shoe rule:

This gentleman has not taken “no” for an answer for about a year now. (Please reference the attached Security Incident Report and January 19th letter to the President of the Board of Trustees). Would you please draft a response for our Board President’s signature which includes the legal reasons that CML can give for requiring its customers to dress appropriately for a public place?

We see here why the director wants the shoe rule: it is inappropriate dress in his eyes. Why that should be a library’s concern is beyond me—their concern is supposed to be making library materials available to their patrons, not being the fashion police.

But it went further . . .

Later, during the lawsuit, the director filed an affidavit. In it, under oath, he stated:

I approved the procedure requiring that patrons wear shoes to protect the health and safety of Library patrons, who may be harmed in the Library if allowed to enter barefoot.

I also approved the procedure requiring that patrons wear shoes to protect the economic well-being of the Library, by averting tort claims and litigation expenses stemming from potential claims made by barefoot patrons who could have suffered injuries that shoes could have prevented.

We already know that that is not the truth. My strong suspicion is that that is what his lawyers told him to say to provide support for the library’s defense.

By the way, lying under oath is called perjury. The courts seemed remarkably unconcerned when I pointed that out.

A Library Attempt

Here is a story about a guy in Ottawa, IL, attempting to get his library’s “no bare feet” rule changed.

Matthew McNatt’s request may have caught the Reddick Library Board flat-footed.

Monday, McNatt, the owner of the McNatt Learning Center in Ottawa, asked the board to allow library patrons to be barefoot.

“Prohibiting bare feet is historically ignorant, culturally insensitive, medically uninformed, legally irrelevant, unnecessarily restrictive and contrary to the spirit of personal freedom that the library is asked to maintain,” said McNatt, who wore a pair of black shoes.

I have also given a presentation to a library board to try to get them to remove a shoe requirement. McNatt’s points are spot on.

The board heard his presentation but postponed action on the request until its September meeting.

Library Trustee Jameson Campaigne suggested McNatt show there was more support for his position.

“A petition with a couple thousand signatures might be a little more persuasive,” Campaigne said.

I can predict what will happen. First, the board will say they need to retain their rule for reasons of “decorum”. And then, if McNatt presses further, the board will suddenly switch to an excuse about how dangerous bare feet are (while ignoring the dangers of, say, high-heels).

Also, of course, why should the exercise of liberty require a petition with a couple thousand signatures? In a city of about 20,000, that’s about 10% of the total population.

McNatt also draws on Abraham Lincoln’s barefoot youth (as did I):

McNatt said as a youth Abraham Lincoln often went barefoot.

“Legend even has it that Lincoln delivered the first speech of his political career barefoot at age 21, as commemorated by the Barefoot Lincoln statue in the town square in Decatur,” he said.

I also pulled in a famous Ohio barefooter: Johnny Appleseed.

I wish McNatt the best of luck. But experience has taught me not to be optimistic.

(H/T to Chris of the Barefoot Hikers of PA.)

More: What is it about librarians?

Oelibrarian made a comment about the last entry, What is it about librarians? I’m going to answer it, and try to explain better, here.

First, many thanks to oelibrarian for providing further perspective.

What got me started was this comment in your original entry:

I am virtually militant about the no bare feet in the library issue and don’t hesitate to tell students they need to wear shoes while in the library.

Of all the various rules in a library, why pick this one out? Surely, if one was going to be militant about library rules, one would pick something like “no drugs or alcohol,” or “beverages must be in covered, spill-proof containers,” or “audible conversations conducted via cell phone or computer.” These are taken from the SUNY-New Paltz Code of Conduct. When I searched for libraries with their policies online, this was about all I could find. (I don’t know if oelibrarian is at New Paltz.)

Those latter rules actually serve a useful purpose, protecting the library’s assets or allowing the other library users to use the library for its intended purpose. A ban on bare feet does nothing but try to enforce one person’s sense of decorum on somebody else. We don’t see that with tattoos, green hair, nose piercings, beards, or any other choice of dress. Not only that, but walking barefoot exposes no more of the foot than other footwear like flip-flops. So, why does oelibrarian make such a big deal about bare feet? Why must this rule be militantly enforced?

In fact, why do libraries in general (and I must say I did not intend to particularly pick on oelibrarian here, but I was mainly using that entry as a jumping off point) ban bare feet? If anything, bare feet are much quieter and much less likely to bother other users. When it comes to going barefooted, it is hard to think of any environment that could possibly be safer than a library. Besides, bare feet are perfectly safe in a whole host of environments; most people’s fears about them are misplaced, and often based on their ignorance (because, not having tried it themselves, they project unwarranted fears).

I guess I used the “authoritarian” label because it seemed to me that a “militant” enforcement of a useless policy warranted it.

Regarding a fear of injury, in the comment, oelibrarian says:

Really, by mentioning the policy I am more compelled by making sure these kids don’t incur some kind of painful foot injury.

Really? Are you also concerned about any of the kids wearing high-heels? Because there are a whole host of injuries that occur when the heels get caught on stair risers or on the edges of rugs. High-heels also set their wearers up for osteoarthritis as they get older due to the upto 60% greater stress on the knees, and create bunions and hallux valgus. Also, research shows that shoes weaken the arches and help lead to fallen arches.

I’m still wondering about the supposed campus-wide policy of no bare feet in any of the buildings. How do you know this? Are their signs on all the buildings? (I’d appreciate it if you would check if you are not sure.) By the way, the student handbook for SUNY-New Paltz has no such rule in it (maybe the handbook for your campus does—maybe you could point that out for me).

In a comment by oelibrarian at the original entry, oelibrarian says

And I have already said earlier, my concern is more for happy and healthy feet, not imposing institutional policies, although one exists regarding shirts and shoes in campus buildings (except dorms of course and I’m sure some gym areas). We actually have lots of construction on campus, including on the front steps of the library and there are places where broken glass has not been cleaned up for weeks. It would make me unhappy if one of those kids had a painful foot injury walking past those areas.

You know what? Inside campus buildings is assuredly safer that outside, yet the (supposed) policy lets people walk barefoot outside and bans it inside. Does that really make any sense if safety is really the issue. Oh, and the studies show that it is the barefooted populations that have happy and healthy feet, not shod populations.

But, I do have to admit that I have a chip on my shoulder. I’ve always been a voracious reader, and to have libraries, libraries that not only should know better but actually have the proper information at hand in their collection to check these things out, be the foremost governmental bodies that ban bare feet hits me right where it hurts. And I have had librarians flat out lie.

When I tried to challenge the policy of the Columbus Metropolitan Library, their Director wrote a letter to their legal counsel, asking for

the legal reasons that CML can give for requiring its customers to dress appropriately for a public place?

After that, they suddenly started using the reason that the policy had been created, years ago, to

safeguard the health and safety of Library patrons and maintain the fiscal integrity of the Library.

Gee, you’d think that he would have thought of that when he implemented the policy, and would not have had to ask his lawyer for a good reason.

And then, when I tried to challenge the policy at the Fairfield County District Library, the Board there

upheld its current Code of Conduct based on what they Board feels is the proper decorum for our organization.

Of course, when I challenged that further, they changed their reason. It then became

for the stated reason that it is the fiscal responsibility of the Board to reduce and eliminate any risks which may potentially produce costly liability.

Of course, they felt no need to reduce any risks associated with high-heels (and ignored the fact that they have insurance for these sorts of things, and are also statutorily immune from tort liability).

As I’ve looked around trying to get library services, I’ve had 3 different libraries that did not have any footwear policy implement one shortly after they saw me in their libraries. I didn’t bother anybody; I caused no problems. They just saw me and decided that they needed to keep me out while dressed in my preferred, non-disruptive state.

Now, maybe “authoritarian” does not apply to oelibrarian. But it surely applies to these other librarians who are more interested in ignoring true health and safety issues and are more interested in imposing their own particular sense of decorum on their visitors, rather than accepting differences that have nothing to do with running a library.

And that is why I ask “What is it about librarians?”

Earth Day

What better way to celebrate than by going barefoot?

What better way to celebrate than to actually feel Mother Earth between our toes?

What better way to celebrate than not to use the resources that go into making shoes?

What better way to celebrate than to raise the consciousness of those around us that shoes are almost never necessary in daily life?

Earth Day. Celebrate it. Barefoot!

Use it . . . and then lose it

We pretty much have the right to go barefoot, just as we have the right to wear a hat or not, or dye our hair green, or wear goth clothing, or get a tattoo. As a general observation, there are few if any rules against it. As the Society for Barefoot Living has shown, no state health department requires shoes in public buildings or restaurants (though there are just a few scattered municipalities that ban bare feet).

But bare feet are different than hat-wearing or tattoos. Going barefooted can result in bans. We’ve seen it at various businesses: you can go barefoot there, but then if somebody with a bug up their butt sees you, you can suddenly be banned. It’s a case of using the right results in losing the right.

It also happens with governmental entities. Libraries are the worst. In fact, not long after I started using the Stark County Public Library barefoot, their Board of Directors passed a resolution banning them, and there’s really not much we can do about it. It’s not as if my presence there barefooted caused any problems. It’s just that they seem to revel in their power to do whatever they want.

Now the Ohio Statehouse is going the same route. I’ve visited the Statehouse many, many times barefooted over the past 10 years or so. I never had any problem until last June, when I was seen by a State Trooper. He stopped me, being sure there was a rule against it (there wasn’t). He also got quite indignant that I even suggested that there was no rule, and he brought in his smarmy Sergeant. Eventually, they called the folks in charge of the Statehouse, and were told that there was no such rule. They let me go (reluctantly!).

But they are now getting even. I used my right, so now I have to lose my right. The Statehouse is now going through the administrative procedures to put a ban on bare feet into the Ohio Administrative Code (the first such reference). However, while the Board for the Statehouse has passed their ordinance, it still must go through a special process, and we have a chance of stopping it (while I say we have a chance, I don’t know just how large that chance is).

We might be able to change the mind of their Executive Director, or we may be able to change the minds of enough Board members as the rule makes its way through the approval process.

What that means, though, is that people need to write letters opposing the rule change. I’ve put together a web page explaining what everybody needs to do. That web page is here. We would greatly appreciate it if you would write the letters called for there.

Otherwise, it will be just another instance of somebody using their right to go barefoot, and then losing it.

(If you do write a letter, it would help if you let us know. Either leave a comment, or send an email to statehouse@ahcuah.com.)