New York Times

November 5, 2013

Supreme Court Takes Up Steelworkers’ Bid for Time to Put on Work Gear

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WASHINGTON — The Supreme Court, which ordinarily confronts complicated questions, heard arguments on Monday about what might seem like a simple one: What does it mean to change clothes?

But the arguments quickly became tangled, as lawyers and justices asked whether everything that is worn qualifies as clothing. What about, they asked, glasses, wristwatches, tool belts and scabbards? Toupees? A suit of armor? Scuba gear?

The questions arose in a case filed by steelworkers who asked to be paid for the time it took them to put on and take off their work clothes, which included flame-retardant outerwear, gloves, boots, hard hats, safety glasses, earplugs and hoods.

A unanimous three-judge panel of the federal appeals court in Chicago ruled that most of what the workers were required to wear were clothes in the ordinary sense of the word. Glasses, earplugs and perhaps hard hats were not, Judge Richard A. Posner wrote for the court. But it made no difference, he said, because the time involved in putting those items on was trivial.

He added that the workers should be careful what they ask for if “they don’t want the American steel industry to go where so much American manufacturing has gone in recent years — abroad.”

The appeals court’s decision included a photograph of what it said was “a man modeling the clothes” worn by the steelworkers.

“From the picture,” Justice Ruth Bader Ginsburg said, “that looks like clothes to me.”

Eric Schnapper, a lawyer for the workers, said that impression missed a crucial distinction, one that a photograph could not convey. The garments and gear, he said, served a protective function.

That answer did not satisfy Justice Samuel A. Alito Jr.

“I don’t know when a human being first got the idea of putting on clothing,” he said. “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 thorns.”

Mr. Schnapper responded that he would draw a line between workplace hazards and other hazards.

But Justice Elena Kagan questioned whether that was the right place to draw a line. The meaning of the word “clothes,” she said, should not turn on whether garments are worn “for sanitary reasons,” “protective reasons” or “because people want doormen to look nice.”

Justice Antonin Scalia also called Mr. Schnapper’s distinction “very strange.”

Lawrence C. DiNardo, a lawyer for the defendant, the United States Steel Corporation, fared better than his adversary, but several justices seemed to think that his proposed test — one that included as clothes anything a worker might don as part of a “work outfit” — was too broad.

Justice Scalia said the word “clothes” could not be stretched that far. “Nobody would consider eyeglasses or a wristwatch or some of this other specialized equipment to be clothes,” he said. “I mean, the word is what it is.”

Justice Sonia Sotomayor agreed that Mr. DiNardo had gone too far. “Your definition would include somebody spending an hour putting on a suit of armor if he’s going to be a jouster,” she said. “It would include the space people who put on that complicated white suit.”

Anthony A. Yang, a lawyer for the federal government, which supported the company, offered a middle ground. There are some kinds of equipment worn by workers, he said, that cannot be fairly considered clothes. Some garments used in the meat packing industry, he said, might fall on the other side of the line.

Near the end of the argument, Justice Kagan asked Mr. Schnapper why the federal government had not issued regulations clarifying what are and are not clothes.

Justice Scalia interjected an answer. “Too complicated is why,” he said, concluding the argument Sandifer v. United States Steel Corp., No. 12-417.

Also on Monday, the justices declined to hear a challenge to a class-action settlement involving Facebook’s privacy policies, Marek v. Lane, No. 13-136. Chief Justice John G. Roberts Jr. issued an unusual four-page statement in connection with the move indicating discomfort with the settlement, which delivered no money to most class members but called for payments to their lawyers and to a new charity.

“In a suitable case, this court may need to clarify the limits on the use of such remedies,” he wrote.