A recent Federal Appeals Court case offered an interesting view on how discrimination based on cultural attributes of a particular race may not actually be illegal race discrimination.
CMS of Mobile, Alabama, hired Chastity Jones as a customer service representative. The job was performed solely via telephone and computer with no personal interactions with customers. However, when the company told Jones, an African American, that she would have to cut her dreadlocks, Jones refused. The company then rescinded the job offer.
Dreadlocks Don’t Make the Cut
CMS maintained a grooming policy that read:
“All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines. . . [H]airstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.
Jones filed a charge of race discrimination with the Equal Employment Opportunity Commission (EEOC) who found in her favor. They then sued CMS in Federal court on Jones’ behalf, claiming that enforcing the grooming policy to preclude dreadlocks was an act of intentional race discrimination against African Americans.
The District Court dismissed the case, determining that Title VII protects against discrimination only on the basis of immutable characteristics, i.e. those that people typically cannot change, such as race, color, or natural origin. Notwithstanding that a particular hairstyle (or manner of dress or other cultural attribute) may be very closely associated with a certain race, it is a changeable matter of personal choice that the law simply does not protect. EEOC then appealed to the 11th Circuit Court of Appeals.
A Matter of Style And Substance
In reviewing the matter, the Appeals Court emphasized that the EEOC chose not to argue the case under the theory of disparate impact. A disparate impact claim requires a showing that an otherwise neutral employment policy has a disproportionately adverse effect upon a protected group, and that the business purpose of such a policy does not justify the discriminatory impact. Therefore, EEOC could not attack the grooming policy on the grounds that it unfairly screened out African Americans from employment with CSM.
Instead, EEOC claimed that by deciding that dreadlocks were not “professional” or “businesslike” as the grooming policy requires, CSM intentionally sought to keep black persons from working for them. They agued that race is more than merely a set of physical characteristics. Instead, the concept is a social construct that encompasses cultural manifestations such as hair, clothing and “grooming practices.”
In particular, although not exclusive to black persons, EEOC suggested that dreadlocks are generally viewed as a racial characteristic of black people due to the unique texture of their hair and how well it adapts to that type of styling. When black persons “choose to wear and display their hair in its natural texture in the workplace, rather than straightening it or hiding it, they are often stereotyped as…not sufficiently assimilated into the corporate and professional world of employment.” Such stereotyping is precisely what Title VII was enacted to address.
EEOC’s Claim Gets Sheared
The Court of Appeals disagreed, noting that while Title VII does not define the term “race”, it seems likely that Congress intended it to apply to “common physical characteristics shared by a group of people and transmitted by their ancestors over time.” They concluded that it is “not much of a linguistic stretch” to find that this refers to traits that are a “matter of birth, and not culture.”
The court acknowledged that there might be a fine line between what are immutable and mutable characteristics of race but in light of the complexity of race issues today, it would be best to let Congress resolve what Title VII actually means when it refers to “race.” Until then, the court’s job is to interpret and apply the law as it exists, and they felt that the law did not offer protection to voluntary choices of how employees choose to dress or wear their hair.
Bottom Line
It is not clear why EEOC elected not to pursue this matter as a disparate impact case. Perhaps the policy’s ban on all “excessive hairstyles or unusual colors” suggested to them that dreadlocks would only be one of many hairstyles to be outlawed, and that the racial impact of the policy would be diluted.
Do not be surprised if EEOC considers issuing new regulations or guidance advising us that banning dreadlocks or other cultural manifestations of racial identity constitute unlawful racial discrimination. This would give them a little more support if they choose to take up this challenge again in a future case.