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.

Reebok being sued for false claims

A couple of weeks ago Reebok was sued for making false claims about their EasyTone “fitness” shoes. The lawsuit asks the court to make it a class action lawsuit. According to a story in the Quincy, MA, Patriot Ledger:

A lawsuit filed Tuesday on behalf of Massachusetts consumer Sandra Altieri claims Reebok made false claims about the efficacy of its toning shoes in delivering more of a workout to leg and butt muscles than a typical shoe.

Supposedly, the way they work is to create an instability when walking, causing the muscles to work harder. Reebok claims 28% harder.

Toning shoes are presented as a way to improve muscular definition by using an unstable sole design. Companies such as Reebok that sell toning shoes say this instability causes leg and butt muscles to work more vigorously than they would if the wearer was using a typical sneaker.

(Whole article here.)

The problem is, a study by the American Council on Fitness found no such benefit.

From a barefooters point of view, the whole idea is insane. Why would you want to create an instability when you walk? One of the real joys and benefits of walking barefooted is the great feedback and proprioception that it gives you. When I’m working in the kitchen, some of the joy of barefooting is the feeling of dancing from counter to counter. I rise up on the ball of my foot and pivot. I shift weight from one side of my (bare) foot to the other. It gives such a feeling of control, of awareness. The same applies when I play tennis, or do a number of other activities. And along the way, this is strengthening my foot. It’s making my foot do its normal function!

Compare that to the false sense generated by the EasyTone. Bah!

Flying Barefoot

Since Daniel Howell was escorted off his plane yesterday for being barefoot, I thought I’d go over the situation for that.

Daniel was flying to NYC to appear on The Today Show to talk about The Barefoot Book. He had actually boarded the plane, and after he had his seat belt on, he was approached and asked if he had any shoes with him. He didn’t, so they tossed him.

Is that legal? Yes, it is. Your airline ticket is basically a contract with a private company, and the terms of that contract are detailed in that airlines “Contract of Carriage.” You can easily use Google to find the contract for any airline you are interested in flying. But it is probably not worth it. Practically every airline has a barefoot rule.

Daniel was flying US Airways, and you can see their Contract of Carriage can be found here (click on the PDF). The relevant section, for any airline, is under the heading “Refusal to Transport”, and for US Airways it says:

US Airways may refuse to transport, or remove from any flight, any passenger for the following reasons: Any passenger who may pose a threat to the comfort and/or safety of other passengers or employees including (but not limited to) passengers who: Are over the age of five (5) and barefoot, or otherwise inappropriately clothed, unless required for medical reasons;

Notice that they say that they may refuse to transport, not that they will, which really makes it a crap shoot depending on the employee who sees you. Also notice that they say the rule is for “comfort and/or safety.” That’s not a crap shoot; that’s just crap. Of course it is more comfortable to be barefoot, and medical experts actually suggest removing your shoes when flying to help keep the blood flowing. Now, maybe they don’t care about your comfort, but thing that the other customers might not be comfortable seeing bare feet. Crap there, too: they don’t ban flip-flops, which show the same amount of foot. And if were really about safety, then there would not be the exception for children under 5 years old, unless the airline wants to go on record saying that they don’t care about the safety of young children. (Think about that!)

It’s all just more mindless following the herd.

The origin of the rule predates the airline deregulation in 1978. Back then, flying was regulated by the Civil Aeronautics Board, and they dictated the Contract of Carriage. That Contract had the barefoot rule (but without the exception for children). After deregulation, most airlines just kept the original Contract, though over the years, many have slowly modified them. (You can see remnants of the CAB rules in that Refusal to Transport is still often called Rule 35.)

Some airlines (a very few) removed the barefoot restriction, Aloha Airlines being one of them. Unfortunately, Aloha ceased operating in 2008. Non-US airlines base their Contracts of Carriage (actually called “General Conditions of Carriage”) on a different model, and generally do NOT have a barefoot clause.

As I said, different airlines have modified the rules, so there are slightly differently worded versions.

Hawaiian Airlines:

Persons who do not meet HA standards for dress and attire: . . . For safety reasons, footwear must be worn unless the passenger is unable to do so due to a disability or physical condition that prevents them from wearing footwear.

Delta Airlines:

Delta may refuse to transport any passenger, and may remove any passenger from its aircraft at any time, for any of the following reasons: Delta may refuse to transport any passenger, or may remove any passenger from its aircraft, when refusal to transport or removal of the passenger is reasonably necessary in Delta’s sole discretion for the passenger’s comfort or safety, for the comfort or safety of other passengers or Delta employees, or for the prevention of damage to the property of Delta or its passengers or employees. By way of example, and without limitation, Delta may refuse to transport or may remove passengers from its aircraft in any of the following situations: When the passenger is barefoot.

AirTran:

AirTran may refuse to transport or may remove from any flight any passenger for one or several reasons, including but not limited to the following: If a passenger’s conduct is disorderly, abusive or violent, or the passenger: Is barefoot, or is clothed in a manner that would cause discomfort or offense to other passengers.

Grand Canyon Airplane Tours:

In addition to persons who may be refused transportation on Carrier under Section 6 above, refusal to transport or removal of the following Passengers may be necessary for the comfort and safety of the affected Passenger or other Passengers: Persons over two years of age who are barefoot;

So, how do you fly barefoot? Society for Barefoot Living members have developed a few strategies. Often you can just board barefoot, since the employees are really pretty busy. Don’t look down at your feet, but keep looking directly into the eyes of the employee, particularly when handing over your ticket, and when passing by the flight attendant as you enter the plane. Once you are seated, you are probably fine if they didn’t see you come in, because, as I noted earlier, many people do take off their shoes once they are seated.

However, carry a pair of flip-flops, or something else you can put on for just a moment if challenged. Put them on, pass the person challenging you, and then just take them off again. Yeah, it’s a hassle (I personally hate to have to carry footwear just in case, and rarely do so), but at least then you don’t miss your flight.

One time, on Southwest Airlines, an otherwise very friendly airline, I’d boarded and flown barefoot without being challenged. (They have the “comfort and safety” excuse with an exception for those under 5.) However, on getting off the plane, I was noticed by a flight attendant who went ballistic, telling me I couldn’t be like that. OK, I’m leaving. I think part of his frustration was that there wasn’t a darn thing he could do about me. Hah!

A New Library Excuse

You may remember the effort by Matthew McNatt to get the Reddick, IL library to remove its ban on bare feet. When I blogged about it in “A Library Attempt”, I 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).

Well, I was right. But I was also so wrong.

Last Monday night the Reddick Library Board decided to keep their barefoot policy. You can read about it in “Library toes the line on shoe policy — Patrons will not be allowed to go barefoot”.

I was right in that they cited that bare feet were dangerous:

In addressing McNatt’s request Monday, Library Director Kathy Clair said she had called the library’s insurance carrier and was told allowing patrons to go barefoot would lead to “heightened liability exposure.”

“We know this is a litigious society,” she added.

I do question the bit about the library’s insurance carrier. The Society for Barefoot Living has amongst its members independent insurance agents, and they have never seen a policy that even mentions footwear or bare feet. I have also seen the policies for a couple of different libraries, and again I can confirm no mention of bare feet. (This is also true about business policies.) So, why would the library’s insurance carrier say it would lead to “heightened liability exposure”? I can think of two possibilities: First, the Library Director may simply be lying. I’ve had other library directors do it to me before. But more likely is that the Director did call the library’s carrier, and the two just swapped myths. By that I mean they both just assumed the answer without actually checking first. And, of course, as I mentioned before, if they were really concerned about litigation due to injury, high heels would be a real target. In regard to injuries, the Director also pulled out another non sequitur, or at least poor reasoning:

Clair further noted library staff must wear shoes, one reason being safety,in case objects — book carts in particular — fell onto staff, which has happened in other libraries with serious injuries.

Yeah? So is everybody, patrons included, required to wear steel-toed shoes? Are patrons also prohibited from wearing flip-flops in case a book falls on their foot? I didn’t think so.

I don’t think I was really wrong regarding “decorum.” That’s never the excuse for public consumption, but I’ve had enough experience with libraries to strongly suspect that that is lurking in the background.

But where I was really, really wrong was in the new excuse. I’ve never seen this one before, and it demonstrates some real originality from the library board:

Board member Jameson Campaigne pointed out he researched the subject, finding that bare feet could increase floor cleaning costs.

I’d sure like to know what sort of research he did. In looking around, I found a few sites, here (Shine from Yahoo), here (Blueagle Carpet Cleaning), and here (Michael’s Professional Carpet Cleaning; click on “Can I walk on my carpets right after it has been cleaned?”), that say that bare feet have natural oils on them that attract dirt. (Yet the second one says that same about not having stockinged feet, for the same reason.) Then there is another site (Dynamic Carpet Care) that notes that shoes also have stuff on them:

If you enjoy going barefoot, or even if you don’t, kick your shoes off at the door. Why remove your shoes? If you have a rough board that needs smoothing, you grab a sheet of sandpaper for the job. Guess what’s on the bottom of your shoes? Sand and dirt grind away at the fibers in your carpet, leading to an early death.

Take a closer look at the bottoms of those shoes and you’ll find oil, dirt and heaven only knows how many bits of leftover dog deposits. Small wonder why your carpet stubbornly refuses to come clean. Do wear slippers or socks inside. The oil from the bottom of your feet also dirties the carpet.

So this one contradicts Blueagle about stocking feet. And yet another, answers the question, “Is it true that going bare-foot will leave oils in the carpet?” by saying:

Yes, BUT shoes do far more damage than bare feet. Shoes bring in whatever the cat didn’t, along with oils from the street and particulate soil. Taking off your shoes when coming into your home is probably the easiest and best way to prolong the life of your carpet. It is also better to wear socks, but skin oils are usually removed easily. Come on guys, take those shoes off. (Emphasis added.)

And then there are others, here (A Clean & Tidy Carpet Cleaner), here, (Clean it), and here (Premium Rugs) that say:

Bare-foot or sock-foot traffic is much gentler to a rug than a hard outdoor-shoe sole (or spike heel), and leaving your outdoor shoes at the entrance to the house tracks in much less dirt.

Since they all use the exact language, I suspect it all come from some common source.

But this rather highlights how these things spread. Somebody, without actually doing real research, makes a guess of some sort, and next thing you know, it becomes the common wisdom.

It looks to me as if the oils on bare feet might help soil rugs. But so will stuff on shoes. And I think it pretty clear that shoes in general will wear down a rug quite a bit faster than bare feet.

However, of course, Board Member Campaigne was very careful not to mention overall carpet maintenance and replacement, but only cleaning costs, since that is the only item that he could use to reinforce his prejudice (and probably his gut feeling that “decorum” requires shoes).

Podoconiosis

[Edited April 18 to clarify concerns about TOMS shoes.]

The article by Darren Richardson that I pointed to in the last blog entry, Shoe company’s ‘One Day Without Shoes’ event leads to soul-searching about soles, mentioned podoconiosis as a reason for wearing shoes. TOMS shoes highlighted it as two of its “Five Facts”:

4. In Ethiopia, approximately 1 million people are suffering from podoconiosis, a debilitating and disfiguring disease caused by walking barefoot in volcanic soil.
5. Podoconiosis is 100 percent preventable with basic foot hygiene and wearing shoes.

I thought I’d check into this disease a bit further.

Podoconiasis is a form of elephantiasis. Most elephantiasis is caused by parasitic worms, but podoconiasis is something else entirely. It is caused when a certain kind of soil is walked on. Small particles of that soil (almost nanoparticles) pass through the skin and work their way into the lymphatic system, clogging it (or causing a reaction that clogs it). That causes the foot and leg to swell horribly (making it look like an elephant’s leg, almost).

A very good source of information on podoconiosis is in Podoconiosis: non-infectious geochemical elephantiasis, by Gail Davey, Fasil Tekola, and Melanie J. Newport; Transactions of the Royal Society of Tropical Medicine and Hygiene, Volume 101, Issue 12, Pages 1175-1180.

Podoconiosis mainly occurs in equatorial Africa (particularly Ethiopia, but also Uganda, Cameroon, Tanzania, Kenya, etc..), with some occurrences in Central America and elsewhere. However, as mentioned, it requires a particular kind of soil (quoting from the Davey article):

An association between podoconiosis and exposure to the local soil was suspected by Robles at the end of the nineteenth century. However, it was not until Price superimposed maps of disease occurrence onto geological surveys that persuasive evidence of a link with red clays, rich in alkali metals like sodium and potassium and associated with volcanic activity, was provided. The climatic factors necessary for producing irritant clays include high altitude (over 1000 m above sea level) and seasonal rainfall (over 1000mm annually). These conditions contribute to the steady disintegration of lava and the reconstitution of the mineral components into silicate clays, colloid-sized particles of which have been demonstrated in the lower limb lymph node macrophages of those living barefoot on these clays. More recent comparison of soil from an endemic area with that from outside the area revealed high levels of beryllium and zirconium (both known to induce granulomata) but the role of these elements is not yet established.

In many cases, it can take upwards of 30 years for symptoms to occur, and somewhere on the order of 5-10% of the population is affected. There also seems to be a genetic influence. Certain occupations are also at risk (obviously, those who spend a lot of time walking barefoot on these specific soils): farmers, gold miners, and weavers (who sit at a ground-level loom).

It is clear that shoes (or, as discussed in the article, sandals) prevent this condition, though frequent prophylactic washing is also important. Supposedly, this condition even used to occur in Europe (France, Scotland, and Ireland), and disappeared as shoe-wearing became standard. Thus, the efforts of TOMS shoes, when directed to these particularly susceptible populations, has some utility when applied in a very specific manner.

Shoes are tools. Those of us who like to go barefoot realize that there are times that shoes, as tools, are necessary, just as face masks and respirators in mines, as tools, are necessary. Under these conditions, these red-clay, alkali volcanic soils, shoes are necessary tools, and I am not going to say that folks should go barefoot there regardless.

While I recognize TOMS shoes efforts in these areas, it must also be pointed out that their “One Day Without Shoes” really misses that point. They stress that somehow being barefooted is uncomfortable and a real problem everywhere, when that is not the case. They encourage people with feet weakened and softened by shoes to stress them, maybe beyond their current capacity (Darren’s gym analogy is good here), in an attempt to gain their sympathy. Instead, it would be better if TOMS shoes really did stress the real medical condition that requires in a fairly limited portion of the world, for a fairly limited set of people.

To make it clear, I am not endorsing TOMS shoes as a whole. Most of their efforts are misguided, as they seem to think that shoes are required in almost all situations when this is clearly not so. However, when it comes to podoconiosis among these susceptible people, if TOMS shoes provides free protection, it is hard to be heartless and to argue that that is a bad thing and that TOMS should do absolutely nothing. Nonetheless, we can also wonder about follow-up (what happens when those shoes wear out), and we can also wonder if something less drastic than shoes would not be better (since wearing shoes opens one up to other conditions, such as athlete’s foot).

Conclusion of a Shoe Designer

According to Rounded-sole shoes said to improve… “Karl Muller decided to create the footwear after visiting Africa. While in Africa, he noticed that the tribesman of the Masai walked barefoot on sand and dirt. They were the picture of health and rarely suffered injuries to the back or joints.”

So how did Muller conclude that a new shoe design would be better than going barefoot as the Masai do? Somehow, he apparently thought that African soil is only soft. The Masai never walk on hard surfaces. So he set out to simulate a soft surface by making a round soled shoe.

What is the reality? Sun baked clay is not significantly softer that western man made surfaces. Rock is definitely not softer. Yet for some unexplained reason, westerners can’t walk on hard surfaces while the Masai can. Likewise for other predominately barefoot people. There is a greater percentage of hard surfaces in western metropolitan areas than some rural areas, but that does not make bare feet inadequate.

This is just another example of the conclusion of a shoe designer when faced with an alternative that has no financial reward.

TOMS Shoes—Bad Assumptions

Every year TOMS shoes runs a special campaign ostensibly to demonstrate their social consciousness. Here’s a recent article in which they spell out:

TOMS Shoes was founded almost four years ago on a simple premise: With every pair of shoes sold, TOMS gives a pair of new shoes to a child in need. The “one for one” philosophy uses the purchasing power of individuals to benefit the greater good, according to Mycoskie.

They don’t even consider that their policy might not benefit th e greater good, since it relies on the usual myths.

Myranya, in her blog, does a really good job discussing this:

April 8, 2010, TOMS Shoes is holding its third annual ‘One Day Without Shoes’ campaign, to ‘experience what millions of children endure every day’. They give a pair of shoes to a child in a third world country for every pair of shoes they sell.

Now I have gone barefoot by choice for fourteen years, and I am very happy with healthy, strong feet. I can tell you that going barefoot for a single day when you’ve spent a lifetime in shoes is NOT anywhere NEAR experiencing ‘what children have to endure’. YOUR feet are going to be extremely tender and soft, you’re going to wince at every pebble, shy away from every rose bush or thistle you spot, you’ll probably get cold toes. You may even get sore calves because you walk differently from what you’re used to. But THEIR feet are tough, calloused and leathery, they can handle much larger rocks without noticing them, they are only occasionally bothered by particularly nasty thorns.

Read the rest of it here.