Legally Speaking: Costumes That Come Back to Haunt You

John G. Browning Nov. 11, 2009, 4:16pm

I often warn students contemplating going to law school that the experience will change the way they look at things. Nothing is ever quite the same after you begin "thinking like a lawyer."

For example, I recently spent Halloween in Las Vegas while speaking at a legal conference. Instead of the adorable little ghosts and goblins, clone troopers and fairy princesses who usually inhabit my neighborhood while trick-or-treating, I was treated to a seemingly endless parade of young (and not so young) women dressed up as naughty witches, sexy policewomen – in fact, put "sexy" or "naughty" in front of just about any occupation, and scantily-clad women were bursting out of their costumes to dubiously represent it.

I even saw at least four provocative versions of Dorothy from "The Wizard of Oz," outfitted in abbreviated gingham mini-dresses and ruby stripper heels that would've made Judy Garland (and Toto, too) blush.

As I murmured to my wife "I don't think we're in Kansas anymore," my lawyer's brain kept insisting that photographic evidence of those outfits might come back to haunt these young women someday.

Let's face it – hardly a Halloween goes by without some outfits generating legal controversy. This Halloween in Dallas, Dallas Cowboys cheerleader Whitney Isleib (who is very blonde and white) chose to dress up in blackface as black rapper Lil' Wayne, wearing dark makeup, dreadlocks, fake tattoos and a "grill" on her mouth.

The photos were apparently uploaded to the Facebook page of another Cowboys cheerleader before spreading to a sports blog and igniting controversy.

Leslie Picca, a sociology professor at the University of Dayton who has examined the issue of racial stereotyping and Halloween costumes, observes "for some people, they see it as a pass. It's Halloween. It's not meant to be taken seriously."

Yet sometimes who is wearing the offending costume makes all the difference. Poor judgment doesn't quite cut it, for example, for a judge – like the Louisiana jurist who dressed in blackface for Halloween and was subjected to disciplinary action (including racial sensitivity classes) for his questionable choice of costume.

In fact, this was a pretty busy year for Halloween costumes that landed their wearers in legal hot water. A law student at Brigham Young University thought it would be a good idea to wear fatigues and full SWAT gear to his criminal procedure class right before Halloween.

However, campus security was a bit tighter this year due to the presence of a guest speaker, Utah Attorney General Mark Shurtleff. BYU police officers "suddenly raided the classroom and hauled Rambo outside," according to the Salt Lake Tribune. The young man was allowed to rejoin the class a short time later – minus the SWAT regalia.

And in an incident that cries out irony, 18 year-old James Miller of Oxford, Ohio, figured it would be cute to dress up as a Breathalyzer for Halloween, complete with a strategically-placed tube near his crotch with a sign that read "Blow here," (classy, James). However, the police who pulled him over at 1:30 a.m. driving the wrong way on a one-way street failed to see the humor in James' costume.

They did, however, observe the remains of a case of Bud Light in his passenger seat and truck, and a blood alcohol level that was nearly twice the legal limit. Imagine the reaction of the other denizens of the drunk tank when a giant Breathalyzer was put in there with them!

This year, the controversies began even before Halloween when word spread that costume company BuySeasons Inc. and national retailer Target were offering an "illegal alien" Halloween costume. It didn't seem to matter that the "alien" was of the intergalactic variety (the costume consisted of a space creature mask, an orange prison jumpsuit with "Illegal Alien" emblazoned across the front, and a "green card").

Immigrants rights advocates called for the costume to be removed from the shelves. Angelica Salas, executive director of the Coalition for Humane Immigrant Rights of Los Angeles, called the costume "distasteful, mean-spirited, and ignorant of social stigmas and current debate on immigration reform."

William Gheen of the political action committee Americans for Legal Immigration, on the other hand, found the uproar to be much ado about nothing.

"I looked at the costume and thought it was kind of funny," he said. "The only thing that wasn't funny was how many illegal immigrants are in this country."

In the end, the forces of political correctness had their way; Target removed the costumes from its Web site, saying it never intended to sell the outfit and only offered it by mistake.

Controversies over costumes often tend to resurface at the worst times. Just ask Julie Myers, the former Assistant Secretary of Homeland Security for Immigration and Customs Enforcement (ICE) who hosted a costume party for ICE employees in Halloween 2007.

The top prize went to a white Homeland Security employee who dressed as an escaped Jamaican prisoner, complete with dreadlocks, prison jumpsuit – and blackface. After other employees complained about the getup being racist and inappropriate, Myers issued an apology, and temporarily transferred the employee.

She also took steps to delete photos that were taken of the party. Unfortunately for her, these efforts were unsuccessful. Photos of Myers beaming next to the costumed employee surfaced just in time to put a hold on her Senate confirmation to head up ICE (then-President Bush had given her a recess appointment).

In addition, a report by the House Committee on Homeland Security found that Myers had spearheaded a "coordinated effort to conceal" her involvement in the scandalous Halloween party.

If Julie Myers is Exhibit A to the theory that Halloween costumes can come back to haunt you, then Kimberly Dahms is Exhibit B.

Dahms, a midlevel executive with Natick, Mass.-based technology company Cognex Corporation, sued her employer and two of its top executives for sexual harassment and fostering a hostile work environment. Among other things, she cited the company's raucous Halloween parties.

Ms. Dahms lost at trial, in part because the jury got to see a number of photos of Dahms dressed provocatively at some of these same parties. The company's defense attorney argued that the photos demonstrated that Dahms was not a victim, but rather embraced Cognex's "work hard, play hard" corporate culture.

Incidentally, Cognex's CEO, Robert Shillman apparently has no worries about costumes coming back to bite you. During his six-day long deposition in the case, the whimsical executive showed up each day to testify in a different costume, ranging from a priest (complete with garlic necklace to ward off vampires) to Mr. Peanut.

When one of the lawyers deposing him objected to the parade of costumes, the judge ruled that Mr. Shillman could dress as he pleased.

John Browning is a partner in the Dallas office of Thompson, Coe, Cousins & Irons, L.L.P. He may be contacted at:

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