A Case for Bare Feet

2. Discrimination
2.1. Source of Discrimination
2.2. Laws and Regulations
2.3. Enforcement by Intimidation
2.4. The "Liability" Argument
2.5. The "Offensive" Argument
2.6. Arbitrary Discrimination
2.7. An Erosion of Liberty
2.8. The "Barefoot Closet"

2. Discrimination

   There are two kinds of people who discriminate against barefooters: Those who have no problems with bare feet, but think they are against some law or regulation, and those who dislike bare feet in general and will use any reason at their disposal to justify their view.

2.1. Source of Discrimination

   The discrimination against barefooters in part comes from negative images some people have of bare feet. Frazine, in his book The Barefoot Hiker [3], wrote:
Bare feet are seen in various situations as being:

carefree   dangerous
clean   disgraceful
comfortable   disrespectful
considerate   embarrassing
expressive   impolite
fun   improper
graceful   inconsiderate
healthy   irresponsible
human   shameful
impulsive   slovenly
natural   uncivilized
practical   uncomfortable
sensitive   unconventional
sensuous   unsanitary
uninhibited   vulnerable

Bare feet are seen in various situations as showing:

confidence   backwardness
freedom   carelessness
independence   hopelessness
innocence   humility
simplicity   poverty
youth   unpreparedness
Obviously, barefooters would choose the words in the left columns to describe bare feet whereas those who dislike bare feet would choose the words in the right columns.
   An unfortunate human tendency is to discriminate against things not understood. Non-barefooters don't understand barefooters (and vice-versa). The image they seem to have of barefooters is that they are immature and irresponsible people who apparently have been unable to find their shoes because of a slovenly lifestyle, perhaps compounded by alcohol or drug abuse, and a dulled awareness of there surroundings. As mentioned in section 1.2, this is very wide off the mark.
   We barefooters go barefoot because doing so gives us a heightened awareness of our surroundings. The soles of our feet are exquisitely sensitive by nature, and years of going barefoot only make them more so. A non-barefooter will see an attractive young couple walking barefoot across a gravel road and think, "They must be so desensitized so as to feel nothing at all," based on the incorrect belief that walking barefoot on gravel must be painful. If he only knew: They do feel the gravel, every piece of it, as well as the few blades of grass that may be growing up through it. That's why they smile. They've been barefoot all summer, or maybe all year. Their bare feet feel everything--far more than he can imagine--but they have long ago learned to reserve the sensation of pain only for those things that actually threaten to hurt them. Their bare feet are no threat to their safety; they have learned to depend on them for their safety. As barefooters, they use all of their senses somewhat differently than he does. Of course they watch the ground with their eyes--their feet and eyes and ears and in fact all of their senses work together in a way that he can never really understand--because he, by his own choice, is bereft of one of his senses. That is whole his problem: He has traded away one of his natural senses--perhaps for a false sense of safety, or perhaps just for conformity--and they have been unwilling to make that trade. Perhaps, somewhere deep down, he knows the truth about his own shoddy bargain and he resents them for it.
   Another unfortunate human tendency is to try to convince others of the "wrongness" of their choices simply because it helps those who have merely "followed the crowd" without making true individual choices feel "better" about it. Barefooters may be seen, by those who had protective (but misinformed) parents, as people who failed to listen to their own parents' warnings about going barefoot. This is a source of further resentment: "Why do you get to go barefoot whereas I must wear shoes because my parents told me to?" These sources of resentment may be why he thinks as he does and why he wants to exclude them.

2.2. Laws and Regulations

   First, let's be clear about the distinction between a law and a regulation. Laws are created and passed by lawmakers, typically elected officials, from city council members, county board members, state representatives, up to the Congress of the United States. Violation of a law can result in a fine, arrest, imprisonment, and even execution. Regulations are created by officials of some government agency (usually county or state). Violation of a regulation can result in a fine or revocation of a license or permit. (Performing some action or service without the relevant license or permit, however, may be against the law.)
   Now then, we state:
Having bare feet in public or in a place of business open to the public (including restaurants) is not against any law. (It is also not against the law to drive barefoot anywhere in the United States [4].)
If bare feet were against the law, "No Bare Feet" signs would have the relevant municipal code or statute number on them just like official "No..." signs posted by municipalities. We further state:
Having bare feet in public or in a place of business open to the public (including restaurants) is not against any health department regulation in any state the authors are aware of.
Health departments are concerned with the storage, handling, and preparation of food and of the hygiene of employees; but they are totally unconcerned with the manner of dress of patrons (or their hygiene, for that matter). During a conversation with a health inspector in California [5], she said, "As far as the health department is concerned, you can enter a restaurant nude."
   To be thorough, letters were written to nearly every state health department inquiring as to whether there is any regulation against bare feet.* To date, 41 states have responded [6]. ** All of them have confirmed that there is no such regulation. There are no health department regulations against bare feet because they are simply not a health issue. Bare soles do sometimes get dirty, granted; but so what? Are shoe soles clean? Put simply: somebody's bare feet can in no way affect anybody else. Part of the letter from the South Carolina health department reads, "The attire of a customer would have little, if any, affect on the wholesomeness of the food."
   It's interesting to note that somebody's bare hands can be a health risk since hands not only come into contact with many things touched by other people's hands after they have perhaps coughed, sneezed, touched germ-laden doorknobs and handrails, but hands are what people use to eat with. There is no health department regulation mandating that patrons must wash their hands before eating.
   For another example of how poorly some people think things through, consider a business near a beach. This business has barefooted customers all day long. Not only has nobody ever contracted any sort of illness from somebody else's bare feet, but nobody thinks anything of bare feet because it's "OK" to be barefoot near a beach. Now, transport this same business a few miles inland. Suddenly, without any change to the inside of the business, bare feet are an alleged health risk. Does this make sense?

2.3. Enforcement by Intimidation

   Despite the fact that bare feet are not against any health department regulation, one sometimes sees a sign that reads:

NO BARE FEET
by Order of the Health Department

Such signs are outright lies. Several barefooters have written to company headquarters to point out this fact. In all cases, the businesses admit their "mistake"7#151;they have to since there is no health department regulation. Most of their responses, however, say something to the effect of "...but we have higher standards." But why? The types of businesses in question are typically fast-food restaurants that will serve anybody having a pulse and money, not up-scale establishments. The prohibition against bare feet where any manner of clothing, hair style or color, tattoos and body piercings are permitted is nonsensical.
   Despite the lack of truth in many "No Bare Feet" signs, many such signs alleging a health department regulation remain. The reason? The authors believe that such signs are intentionally posted because:

Some of these reasons are also believed by some health department officials [6]:
Perhaps the signs which say "by order of the health department" are put up so that management can avoid arguments with customers. (New Mexico)

It is my experience that most restaurants post signs that say footwear is a health code requirement to enforce their policy and remain blameless if they have a complaint from someone that wants to be barefoot. (Ohio)

We say "intentionally posted" because we find it difficult to believe that businesses who are supposedly knowledgeable about health department regulations in order to handle and prepare food for the public safely would be ignorant of the fact that there is no regulation against bare feet. If some businesses truly are ignorant regarding bare feet, we wonder what more important and truly health-affecting regulations they might also be ignorant of--a frightening thought.

2.4. The "Liability" Argument

   Once the law and health department myths are shown to be false, the next argument used against barefooters is the infamous "broken glass" argument that is: "You might cut yourself and sue us." From personal experience, we know this fear to be unfounded. Lucas, in [7], stated:
Yes, broken glass exists, but it is not "all over the place" even on city streets. Unless it's a recent breakage, it gets kicked/swept into cracks, against walls, or right against curbs and isn't strewn about. For the little glass that does remain, again, just watch where you're going! But, for the seasoned barefooter with tough, thick soles, most broken glass is not a problem even if you step directly on it.
Dr. Steven E. Robbins, et al, in [8], corroborates Lucas's last sentence:
Another aspect of barefoot safety is risk of puncture wounds. A report has shown that when the plantar surface is subjected to localized load via sharp deforming objects, it deforms so as to contain the object in the void created by the deforming object, thus resisting perforation. Whereas the risk of plantar surface puncture wounds must be greater when barefoot if compared with wearing shoes, this skin defense makes the sole of the foot reasonably resistant to penetration.
   Even if a barefooter did get a piece of glass in a sole, s/he would most likely not sue the business owner. We base this on correspondence with many barefooters. Barefooters highly prize the freedom to go barefoot and would not do anything to jeopardize that freedom. Additionally, liability case law makes a successful lawsuit extremely unlikely. In order to successfully sue a business owner for any injury, four elements must be proven: a duty of care to the customer, a breach of that duty (negligence), a causal link between the breach and harm, and actual harm or damage [9].
   Regarding duty of care: In general, a business owner is not the insurer of a customer's safety. The owner must only guard against unreasonable risks about which the customer would not be otherwise aware, or a risk that the customer could not appreciate [10]. In addition, under the doctrine of "primary assumption of the risk," no duty of care is owed as to risks inherent in a given activity [11]. It is pretty clear that a business owner has no special duty of care to a barefooter. It is the barefooter who has the superior knowledge over the business owner, and the barefoot customer is fully expected to appreciate any inherent risk in going barefoot.
   In fact, business owners who post signs requiring footwear in their stores for "liability reasons" might be opening themselves up for "duty of care" lawsuits. These signs could be interpreted as the business owner proclaiming a duty of care in assuring the safety of a customer's footwear (by deeming one type of footwear unsafe and not allowed, the business owner has taken under his or her wing the whole range of possibly unsafe footwear). If a customer on high heels or platform shoes were to severely sprain their ankle because of their shoes, the business owner might be liable, since he or she has proclaimed by his or her sign a "duty of care" interest in customers' footwear.
   There is an additional doctrine that applies: comparative (or, in some states, even the more severe contributory) negligence. If, somehow, a lawsuit made it past the "duty of care" barrier (already unlikely), a jury is required to weigh the relative negligence of the business owner and the barefooter. Any award would then be reduced by the amount of negligence attributed to the barefooter, and in many states, if the barefooter is found to be more than 50% negligent, no award is allowed. Even if a barefooter were to step on some broken glass, any rational jury would think: "What did you expect? You were barefoot!" No award would be made.
   Another version of the "liability" argument is when a business further claims that it can not admit bare feet because their insurance company forbids it in their policy. The authors are unaware of any insurance policy that forbids bare feet or of the existence of any data showing that bare feet are a statistically-significant risk that would motivate actuaries to add such a restriction to policies.
   An insurance agent questioned about this said that there are no such restrictions in liability insurance policies [12]. Given that, we believe that the claim of insurance policies forbidding bare feet is just like the claim that health departments forbid bare feet: bogus. We further believe that such claims are intentionally made for reasons similar if not identical to those made about health department regulations.
   Even though bare feet do not pose any real liability risk, if a business owner wishes to post a sign, we think a much more reasonable sign could read:

Bare Feet
at own risk

Business such as auto-repair shops have signs that read "Not responsible for fire or theft," and car-washes have "Not responsible for items left in car, damage, or antennas." Since there are many such businesses still in existence, implying that they haven't been sued into bankruptcy, such signs are apparantly sufficient to ward off lawsuits. Therefore, a "Bare Feet at own risk" sign should also be sufficient while still allowing people to go barefoot if they choose to do so.

2.5. The "Offensive" Argument

   Another popular argument given is that bare feet are somehow "offensive to other customers." How can bare feet be offensive yet feet with thin straps on the tops and a thin layer of material on the soles suddenly make them not offensive when there is little difference in overall appearance? It must be that some people are offended by the mere knowledge that somebody else's feet are bare and this gets back to the source for discrimination against bare feet mentioned in section 2.1.
   But why is there a general belief that somebody has the right not to be offended? We propose that this is the price one pays for living in a society supposedly as free as ours. In Ferguson v. Gies [13], the supreme court of Michigan stated:
The man who goes either by himself or with his family to a public place must expect to meet and mingle with all classes of people. He cannot ask, to suit his caprice or prejudice or social views, that this or that man shall be excluded because he does not wish to associate with them. He may draw his social line as closely as he chooses at his home, or in other private places, but he cannot in a public place carry the privacy of his home with him, or ask that people not as good or great as he is shall step aside when he appears.
   Another thing we fail to understand is why are easily-offended customers opinions' given more consideration than barefooters' opinions? Barefooters are customers too. We suspect the "squeaky wheel" theory.
   It comes down to this: If some people have a problem with bare feet, tough--it's their problem and they need to get over it. There are things that even some barefooters find offensive in others, but we value their individuality, freedom, and comfort more than our personal sensibilities. For example, one can patronize many a business with green, spiked hair, studded leather apparel, body piercings in several locations, or unruly, noisy children (who truly are an intrusion), and be served without question. But, venture into a business nicely dressed with bare feet and forget it. Does this make sense?

2.6. Arbitrary Discrimination

   We believe discrimination against bare feet to be arbitrary. In the state of California, arbitrary discrimination is a violation of the Unruh Civil Rights Act [14]. (We would expect and hope that other states have similar legislation.) The act states:
   All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
   This section shall not be construed to confer any right or privilege on a person which is conditioned or limited by law or which is applicable alike to persons of every sex, color, race, religion, ancestry, or national origin.
As written, this would appear to leave barefooters out in the cold because discrimination against bare feet is not mentioned. However, there are elaborations and cases extending the bounds of the Unruh Act. In Cox [15], it was stated:
   The nature of the 1959 amendments [to the Unruh Act], the past judicial interpretation of the act, and the history of the legislative action that extended the statutes' scope, indicate that identification of particular bases of discrimination-- color, race, religion, ancestry, and national origin--added by the 1959 amendment, is illustrative rather than restrictive.
   Although the legislation has been invoked primarily by persons alleging discrimination on racial grounds, its language and its history compel the conclusion that the Legislature intended to prohibit all arbitrary discrimination by business establishments. ... We therefore conclude that a business generally open to the public may not arbitrarily exclude a would-be customer from its premises and, upon customer's refusal to leave, subject him to criminal conviction.
This sentiment was supported by the Attorney General Evelle J. Younger [16] who stated:
   The principal question is whether the prohibition of the [Unruh] Act is limited to discrimination on the basis of sex, race, color, religion, ancestry, or national origin. We conclude that it is not.
This sentiment is further supported in Winchell v. English [17]:
   [The] Unruh Civil Rights act is to be given a liberal, not a strict, construction with a view to effect its object and to promote justice.
as well as in the other cases [18] [19] [20] [21].
   It is true that going barefoot, unlike being of a particular sex, race, ancestry, or national origin, is a personal choice. Some might argue that, being a personal choice rather than a condition of birth, it deserves no civil rights protection; however, another interesting excerpt from Cox is:
Neither municipality nor shopping center may exclude individuals who wear long hair or unconventional dress ... merely because of such characteristics.
Clearly, having long hair or unconventional dress is a choice, but, even so, apparently are unacceptable justifications for discrimination. Therefore, shouldn't having bare feet also be an unacceptable justification for discrimination?
   Also remember that the freedoms of speech and association protected by the first amendment to the U.S. Constitution, perhaps the most prized freedoms in this country, are protections of what we say and with whom we associate, both of which we have choice in.
   The second paragraph of the Unruh Act, however, is problematic. Essentially, it says that discrimination and exclusion is permitted provided that it is done "across the board," e.g., a policy wherein bare feet are not permitted for all people regardless of their sex, color, race, etc., would be legal. But the above wherein individuals may not be excluded for wearing long hair or unconventional dress is prohibited presumably even if it were applied across the board to all people. Given that, we would expect that discrimination against and exclusion of bare feet would also be so prohibited.

2.7. An Erosion of Liberty

   The state of affairs for barefooters are only getting worse with time as more "No Bare Feet" signs appear. For example, the Berkeley Public Library recently added a "shoes required" rule. The library eliminated a freedom by adding a single line to a list of rules. There was no hoopla or news coverage: a freedom was silently eliminated.
   The 5th and 14th amendments to the U.S. Constitution establish a "sphere of personal liberty" about every person wherein certain rights exist with the words:
...nor shall any state deprive any person of life, liberty, or property without due process of law.
Those rights are generally held to increase in sanctity with proximity to a person's body. Our feet are part of us and they belong to us. Unless a compelling state interest can be demonstrated, anyone presuming to tell us how, or indeed whether, we should cover them is intruding upon our very persons.
   We believe that, especially in the case of a public government facility funded by tax dollars, such as a public library, far more than a privately-owned business open to the public, a policy forbidding bare feet impinges upon our liberty and is therefore unconstitutional.

2.8. The "Barefoot Closet"

   Many barefooters, prior to discovering that there are others like them, felt that they were "alone" and "weird" in their desire to go barefoot. We went barefoot to places (sometimes only at night) where we were reasonably sure that we wouldn't run into anybody we knew for fear of what they might think (the negative images of bare feet in section 2.1). Bain, in [2], also acknowledged this fear when he wrote:
...and not only at the hour when mankind is yet asleep, do I venture thus forth in so unconventional a way...
This fear, combined with the myths of bare feet being against the law or against a health department regulation, is enough to drive some barefooters into a "barefoot closet" and into wearing shoes for the sake of "conformity."
   We have received notes from other barefooters stating that our existence has "validated" their lives. We believe that there are many more people out there who would love to go barefoot but are too "closeted" to do so. This is very sad: Why should it be that doing something as simple, natural, and pleasurable as walking barefoot should carry such a stigma?

* There was difficultly obtaining the correct addresses for the health departments in Alaska and Minnesota.
** The states that have not responded to date are: AK, HI, MA, MN, MS, NV, UT, VT, and WA.

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Last updated: September 24, 1999
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