Schnapper pointed out all the wearable tools that we don't count as clothes:

MR. SCHNAPPER: In ordinary parlance, not everything an individual wears would be referred to as clothes. There are examples of that in this courtroom: Glasses, necklaces, earrings, wristwatches. There may be a toupee for all we know. Those things are not commonly referred to as clothes. JUSTICE SCALIA: I resent that. (Laughter.) MR. SCHNAPPER: And nor are neck braces, which I've seen one in this courtroom. It's also the case that there are any number of things that people wear to do their jobs that are not clothes. The police officers outside the building are wearing guns, radios. I suspect they have handcuffs; I couldn't see those. The quarterback who played for your team yesterday had a quarterback playbook wristband with the plays on—on his—on his wrist. Workers wear tool belts. It's—one of the recurring—recurring issues that has come up in these cases are knife scabbards. We don't think anyone would, in ordinary parlance, call those things clothes. And we think that's the significant limitation on this. And so even though you could be wearing those things, those are not clothes.



JUSTICE SCALIA: Tools and what?



MR. SCHNAPPER: Scabbards.



JUSTICE SCALIA: Scabbards.



MR. SCHNAPPER: Knife scabbards. The Tenth Circuit holds a knife scabbard as clothes because it's like holsters.

To which the justices responded with several "walks like a duck" rejoinders. Like this:

JUSTICE GINSBURG: But we're dealing with here, from the picture, that looks like clothes to me.



MR. SCHNAPPER: Your Honor, I think that your question raises an excellent point. One of the problems with the picture is that it withholds from you other information that you would use to assess whether to describe it as clothes. You don't know what— JUSTICE KENNEDY: Except you would look and say, those clothes probably have something special underneath them. I mean, in ordinary parlance I think that would be a proper use of diction.

And this:

JUSTICE ALITO: Why is it that the jacket and the pants in that picture are not clothes?



MR. SCHNAPPER: In our view—well, let me—part of it—first of all, they are designed for a protective function, to protect you from catching fire. JUSTICE ALITO: This is one of the aspects of your argument that seems really puzzling to me. I don't know when a human being first got the idea of putting on clothing. I think it was one of the main reasons, 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—against thorns. So you want us to hold that items that are worn for purposes of protection are not clothing?



MR. SCHNAPPER: No, Your Honor. We've been—we've tried to be quite specific about that. We distinguish between items that are designed and worn to protect from a workplace hazard. And the court of appeals argued that everything is, in a sense, protective. That is not the standard that we propose. Workplace hazards are different. And in ordinary usage, when things are being used for that kind of protection, they are typically described in other terms. JUSTICE ALITO: So if it—if it protects against something other than workplace hazard, it can be clothes. But if it protects against a workplace hazard, it isn't clothing. Is that your test?



MR. SCHNAPPER: And it's designed to provide that kind of protection. Let me explain why—why we've added that. There are some instances in which one would wear ordinary clothing on the job, things that are no different from what you would buy at J.C. Penney's, because it was to some degree protective from a workplace hazard. That's true here. Whatever else you are wearing, underneath it you have to wear cotton or wool.

And this:

JUSTICE SOTOMAYOR: I have—I do have an understanding that you're right, that jewelry are not clothes, that toupees might not be, that makeup is not, and they cover the body. So I agree that a definition that says anything that covers the body might go too far.



But I do have a problem with things that look like clothes. If I don't buy your argument that fire resistant pants and shirts are not clothes, where would you propose I draw the line? Assume I say you are wrong with if it looks like clothes, it is clothes. Let's apply a little bit of common sense to life.



The justices also emphasized the challenges of distinguishing between work-specific types of clothes. As in this:

JUSTICE GINSBURG: Mr. Schnapper, can I ask you another question? We're talking about time and whether it will be paid. And we have one worker that puts on this protective garb. And then we have another, the baker. It takes them about the same amount of time to do—put on everything he has to put on. But everybody agrees, he doesn't get paid for that. What is the—that that would come within the clothing. So we have all kinds of people who have to wear special uniforms, a doorman in an apartment house. It takes them time to put it on. Why should there be a distinction in getting paid between the protective garb and something that you must wear on the job? That—yes.

And this:

JUSTICE KAGAN: But I thought that your distinction was well, there are two sets of clothes, to use a better word. There are two sets of clothes and they both look like clothes, but one is for protective—a protective function, and one is for a sanitary function. And that's the distinction that you want to draw. And I guess another way of saying Justice Ginsburg's question is: Why should we look at a word that just says "clothes" and make that distinction as to what the purpose of changing clothing is, whether it's for sanitary reasons or whether it's for protective reasons or whether it's because people want doormen to look nice?

And this:

JUSTICE SCALIA: Yes. But common usage doesn't separate from the meaning of clothes only those—those protective garments that are required by the occupation, that are required by the employer. That's a -- that's a very strange definition of clothes. Hunters, when—when they're hunting birds wear—wear trousers that are brush-proof. They, you know, resist briars and other things. Those are protective. And those—those pants wouldn't be worn elsewhere. Now, I can understand you're arguing those are not clothes because they perform a protective function other than heat and cold. But you're—you're proposing a very odd definition of clothes. It excludes only those protective garments that are protection against workplace hazards. That's very strange.



MR. SCHNAPPER: All right. Your Honor—well, Your Honor, we are not undertaking to give you a comprehensive definition of what items are and aren't clothes. The—the variety of things people wear is—is extraordinarily complicated, and we—we have not taken that on. What we have tried to do is suggest— JUSTICE SCALIA: No, but you have taken it on. You're trying to tell us what is the ordinary meaning of clothes. That's what you're appealing to, the ordinary meaning.



MR. SCHNAPPER: Your —­ JUSTICE SCALIA: And I suggest the ordinary meaning is not—is not what you—you have proposed.



MR. SCHNAPPER: Well, we may disagree of the substance, but— JUSTICE SCALIA: It includes protective garments, and—and you want it to include all protective garments, I guess, except those that protect against workplace hazards. That's peculiar. MR. SCHNAPPER: All—all we're asking the Court to hold is that certain things are not clothes. We're not undertaking to sort out among the things that hunters wear, where you would draw the line. I mean, ordinary—ordinary parlance is—is complicated. But we think—look, it's certainly the case, we believe, that not everything people wear is clothes.

And this:

CHIEF JUSTICE ROBERTS: What about heavy duty pants, you know, blue jeans that somebody—the thick ones that you use because the work environment will involve, you know, grease and hot things and all, but that you wouldn't necessarily or a particular worker wouldn't wear off the steel mill site? Is that clothing designed to protect against work hazards or is it—some people would wear that outside the steel plant, other people wouldn't.

DiNardo, a lawyer for U.S. Steel, argued that "collective bargaining does not focus on whether or not a shirt is clothes or a pair of pants are clothes or protective eye gear." Given that, he continued, "the term 'clothes' as used in the statute was intended to encompass the work outfit industrial workers were required to change into and out of to be ready for work."