Likelihood of Confusion Surveys/Infringement

Survey Evidence to Evaluate Religious Freedom, Discrimination and a Dress Code Sign

Some readers will no doubt have heard about the recent case in Williamsburg, Brooklyn, involving seven Chassidic shop owners who posted a dress code sign in their shops. The sign required that shoppers be modestly dressed, and was written in English, Hebrew, and Spanish. According to the sign, “Shorts,” “Barefoot,” “Sleeveless,” and “Low Cut Neckline” were not allowed in the store. See the sign to the left.

The storeowners were sued by the New York Commission on Human Rights, an organization that addresses discrimination matters (what the Commission calls “Human Rights”) in New York City. The Commission argued that the sign discriminated on the basis of gender and creed, and wanted the sign taken down and the store owners fined on the basis of discrimination.


The law firm of Kirkland & Ellis took on the matter on a pro bono basis, arguing that the sign was not discriminatory and that the real issue was the storeowners’ freedom of religion. Kirkland & Ellis retained MMR Strategy Group to conduct a survey in the matter, which we conducted at a reduced rate. The Commission conducted their own survey.


I do not know of any other cases involving litigation surveys to measure perceived discrimination. This post provides an overview of the matter, discusses the two surveys, and describes the outcome.


Freedom of Religion versus Freedom from Discrimination

A lot has already been written about this matter, much of it critical of the Commission’s position. For example, the New York Post published an editorial with the headline, “Discrimination lawsuit against Hasidic stores silly.


The seven stores are all owned by Chassidic (ultra-Orthodox) Jews who belong to a particular branch of Judaism called “Satmar.” Satmar Chassidim live what many would describe as an insular and religious life, which is focused around their community. Their tight-knit community offers what they believe is a defensive mechanism to preserve their way of life against the encroachment of outside influences. Satmar Chassidim dress in very modest clothes, including long dresses for women, and long pants for men, in any season.


The shops involved, in all likelihood, primarily serve the local Satmar community. The stores are small and are located within a few blocks of each other, on Lee Avenue in Williamsburg, Brooklyn. Some of them sell items such as Satmar-oriented styles of clothing, kosher foods, invitations for bar mitzvahs, or household items that a person is unlikely to want unless they are part of the Satmar community.


Elsewhere in Brooklyn, including in other parts of Williamsburg, many neighborhoods are filled with a very diverse population, including urban trendsetters and hipsters who dress very differently than Satmar Chassidim. Brooklyn is a popular and trendy locale, the home of Jay-Z, the Barclays Center, and lots of urban renaissance. It is a melting pot where many residents view themselves as progressive and outspoken.


The mix of different demographics and lifestyles in and around Williamsburg shows how this matter can raise issues of freedom of religion versus freedom from discrimination.


On the one hand, the Commission argued that the sign subtly suggests that certain types of people are not welcome in the store, such as women or perhaps even non-Jews. Kirkland & Ellis, on behalf of the storeowners, argued that the sign was addressed equally to men and women, and that all people who were modestly dressed were welcome in the store. Kirkland & Ellis also argued that dress code signs are commonplace, as in the familiar sign that states “No shirt, no shoes, no service.”  

Two Litigation Surveys Measuring Discrimination

Two surveys were submitted in this matter, one from me and one from the Commission on Human Rights. I conducted my survey among people representative of those who might see the sign in New York City. My survey measured discrimination based on a standard which defines discrimination as any practice making ordinary people feel uncomfortable on the basis of religion or gender.


Specifically, my survey measured whether ordinary people who might see the sign believe that a store displaying the sign would make typical people:

  1. feel unwelcome based on gender,
  2. feel unwelcome based on religion, or
  3. feel that the store welcomes men only.

In addition to testing pictures showing the sign in front of the store, my survey also tested a “control,” which consisted of the stores without the sign. The results of my survey showed that the sign was not discriminatory according to the standard described above. For example, the vast majority of respondents felt that the store, even with the sign, welcomes both men and women.


The Commission, meanwhile, conducted their own survey. The Commission’s survey was written by Commission staff people, with the data gathered by interviewers hired by the Commission. At least by my analysis, the Commission’s survey also showed that the sign contributed relatively little towards the key measures relating to discrimination.


Due to confidentiality requirements, I cannot describe my survey or the Commission’s survey in more detail.


A Settlement Based in Part on Litigation Surveys

In the end, the two sides settled just before trial. There will be no fines against the stores, and the stores will be allowed to retain the dress code sign in a modified version that makes clear that everyone is welcome.


In my opinion, this is a reasonable solution for both sides. I was told, and believe, that the survey evidence presented helped convince the Commission that it made sense to settle this matter.


I also believe that the sign is not discriminatory and that the stores should have been allowed to keep the sign in some version. I was surprised that the matter took so long to resolve, but the Commission was determined to pursue this matter.


Most of all, I’m grateful that I live in a country that believes both in freedom from discrimination and freedom of religion. This case required a balance between the two. The process of resolving that balance was not fast and not easy, but it worked in the end. I am grateful to Kirkland & Ellis (particularly Jay Lefkowitz, Devora Allon, Chris Reigstad, and Terence Leong) for involving me in the process of resolving this matter, and for their efforts on behalf of the storeowners.

Bruce Isaacson, President
Dr. Bruce Isaacson
MMR Strategy Group

© Copyright MMR Strategy Group, May, 2012. All rights reserved.