By Ronald Miller, J.D.
Agreeing with a district court that a complaint filed by the EEOC on behalf of an African-American job applicant, whose offer of employment was rescinded because she refused to cut off her dreadlocks, did not plausibly allege intentional racial discrimination, the Eleventh Circuit affirmed the complaint’s dismissal. Although dreadlocks are culturally associated with race, they are not an immutable characteristic of black persons, the appeals court found, also affirming the denial of leave to amend the complaint because the proposed amendment would be futile (EEOC v. Catastrophe Management Solutions
, September 15, 2016, Jordan, A.).
Race-neutral grooming policy.
The claims processing company was seeking candidates with basic computer knowledge and professional phone skills. The applicant completed an on-line employment application and was selected for an in-person interview. She was one of several candidates hired for the position, contingent on labs tests and other paperwork. As of this time no one had commented on her hair. However, after a private meeting to discuss a scheduling conflict, the applicant was advised that the employer could not hire her "with the dreadlocks." When the applicant refused to cut her dreadlocks, the job offer was rescinded.
At that time, the employer had a race-neutral grooming policy which stated, among other things, that "[H]airstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable."
The EEOC filed suit on behalf of the applicant whose offer of employment was rescinded when she refused to cut off her dreadlocks. According to the EEOC, the employer’s conduct constituted discrimination on the basis of race in violation of Title VII. Dismissing the complaint, the district court found it did not plausibly allege intentional racial discrimination.
Dreadlocks, according to the proposed amended complaint, are "a manner of wearing hair that is common for black people and suitable for black hair texture." The proposed amended complaint also contained legal conclusions about the concept of race: First, the EEOC stated that race "is a social construct and has no biological definition." Second, the EEOC asserted that "the concept of race is not limited to or defined by immutable physical characteristics." Third, according to the EEOC Compliance Manual, the "concept of race encompasses cultural characteristics related to race or ethnicity," including "grooming practices." Fourth, although some non-black persons "have a hair texture that would allow the hair to lock, dreadlocks are nonetheless a racial characteristic, just as skin color is a racial characteristic." Significantly, observed the Eleventh Circuit, the proposed amended complaint did not allege that dreadlocks are an immutable characteristic of black persons.
Theory of liability.
Before addressing the EEOC’s arguments regarding whether dreadlocks are an immutable trait of race, the Eleventh Circuit first addressed the EEOC’s theory of liability. The EEOC was proceeding only on a disparate treatment theory and not a disparate impact theory. To prevail on a disparate treatment claim, a Title VII plaintiff must demonstrate that an employer intentionally discriminated against her on the basis of a protected characteristic. In contrast, a disparate impact claim does not require proof of discriminatory intent. Here, the proposed amended complaint had to contain sufficient factual allegations to set out a plausible claim that the employer intentionally discriminated against the applicant, individually, because of her race.
But the appeals court found that the EEOC conflated the two liability theories. As a result, because this was only a disparate treatment
case, the court declined to address the EEOC’s arguments that the employer’s race-neutral grooming policy had (or potentially had) a disproportionate effect on other black job applicants—a disparate impact.
The appeals court also rejected the EEOC’s reliance on the Supreme Court’s decision in Young v. United Parcel Serv., Inc.
, which involved a provision of the Pregnancy Discrimination Act, to support its use of disparate impact arguments in this action. Here, the court pointed out that the holding of Young
was limited to language in a specific provision of the PDA. Thus, Young
was not automatically transferable to a disparate treatment case under Title VII involving allegations of intentional racial discrimination.
Definition of race.
This appeal required the Eleventh Circuit to consider, at least in part, what "race" encompasses under Title VII. The appeals court determined that it appears more likely than not that "race," as a matter of language and usage, referred to common physical characteristics shared by a group of people and transmitted by their ancestors over time. It found little support for the EEOC’s position that the 1964 Congress meant for Title VII to protect "individual expression . . . tied to a protected race." Rather, the court concluded that the lessons of Willingham v. Macon Tel. Publ’g Co.
, and Garcia v. Gloor,
is that, as a general matter, Title VII protects persons in covered categories with respect to their immutable characteristics but not their cultural practices.
Characteristics vs. practices.
Critically, the EEOC’s proposed amended complaint did not allege that dreadlocks themselves are an immutable characteristic of black persons, and in fact stated that black persons choose to wear dreadlocks because that hairstyle is historically, physiologically, and culturally associated with their race. The fact that dreadlocks are a "natural outgrowth" of the texture of black hair does not make them an immutable characteristic of race. Thus, under Willingham
, the EEOC failed to state a plausible claim that the employer intentionally discriminated against the applicant on the basis of her race by asking her to cut her dreadlocks pursuant to its race-neutral grooming policy.
EEOC Compliance Manual.
Finally, the Eleventh Circuit rejected the EEOC’s reliance on its own Compliance Manual to support its interpretation of Title VII. The Compliance Manual was entitled to deference "only to the extent that [it has] the power to persuade." However, the appeals court pointed out that the Compliance Manual contravened the position the EEOC took in an administrative appeal less than a decade ago. In Thomas v. Chertoff
, the EEOC argued that a grooming policy interpreted to prohibit dreadlocks and similar hairstyles lies "outside the scope of federal employment discrimination statutes," even when the prohibition targets "hairstyles generally associated with a particular race." The EEOC had not provided a reasoned justification for changing course in the Compliance Manual. As a result, the appeals court chose to not give the EEOC’s guidance much deference or weight in determining the scope of Title VII’s prohibition of racial discrimination.