By Joy P. Waltemath, J.D. A case that is getting a lot of attention is the Eleventh Circuit’s ruling last week that although dreadlocks may be culturally associated with race, they are not an immutable characteristic of black persons. As such, the court refused to find that an African-American job applicant whose job offer was rescinded because she refused to cut off her dreadlocks had plausibly alleged intentional race discrimination. The company she applied to had a race-neutral grooming policy which stated, among other things, that “hairstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.” Race-neutral grooming policy. The applicant completed an online application, came in for an in-person interview, and was one of several candidates hired, contingent on lab testing and other paperwork. During a private meeting to discuss a testing scheduling conflict, the HR manager asked her whether her hair was in dreadlocks; when she said yes, HR advised her that the company could not hire her “with the dreadlocks” because “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” The applicant refused to cut her dreadlocks, and the job offer was rescinded. A “racial characteristic.” In the opinion of the EEOC, which sued on behalf of the applicant, this was intentional race discrimination. The EEOC said that race “is a social construct and has no biological definition;” that “the concept of race is not limited to or defined by immutable physical characteristics;” that the “concept of race encompasses cultural characteristics related to race or ethnicity,” including grooming practices; and 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.” Definition of race. What does “race” encompass under Title VII? More likely than not, reasoned the Eleventh Circuit, “race,” as a matter of language and usage, refers 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, 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 complaint did not allege that dreadlocks themselves are an immutable characteristic of black persons; in fact, it 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. Citing cases from the 1970s and 1980s, the court laid out the distinction: Discrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not. That meant to the court that the EEOC failed to state a plausible claim that the company intentionally discriminated against the applicant on the basis of her race by asking her to cut her dreadlocks under its race-neutral grooming policy. Employer policies. So what does this mean for employers and their attempts to maintain race-neutral grooming policies? The appeals court here set out a standard defining race-based discrimination based on “immutable characteristics,” not “mutable choices.” This standard seems to suggest the kind of certainty that employers crave. Consider the Army’s experience. But with black hair, the line between immutable characteristics and mutable choices can be more complicated, as the U.S. Army learned in 2014 when it first banned and then, several months later, rescinded its ban on a number of natural hair styles for black women. According to an article from the Army News Service, “the service determined in a review that authorized hairstyles announced earlier this year limited female Soldiers' hair grooming options.” “Racially insensitive?” The Army began reviewing its policies on female hairstyles soon after it released its earlier version of the regulation, after the chair of the Congressional Black Caucus sent a letter signed by her and more than a dozen black female lawmakers to the Secretary of Defense. The letter said the new rules were ‘biased and racially insensitive,” and it sought a review of the new policy. Eventually the Department of Defense also requested a review. The New York Times, commenting on the controversy before the Army relaxed its policy, published an op-ed piece explaining that, while the issue “may seem like a whole lot of something about nothing,” what the original policy’s detractors were seeking “is a policy that reflects a basic understanding of black hair. For most black people, hair naturally grows up and out—think of the shape of an Afro—not down. But the Army’s regulations assume that all hair not only grows the same way but can be styled the same way.” Said the newspaper, “The argument isn’t that the Army does not have the right to enforce a conservative code—this is the Army, after all—but that it must consider the diversity of hair textures.” What is professional? The same holds true for employer grooming policies: Employers would be wise to consider the diversity of hair textures when they evaluate what presents a “business/professional image” or what is an “excessive” hairstyle. Remember, HR had advised the applicant that the company could not hire her “with the dreadlocks” because “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” If the grooming standard for a business/professional image is, in reality, whether or not hair is “messy,” perhaps “messy” should be spelled out in the policy. Here, based on what the HR manager said, it was anticipatory messiness that was the problem with the applicant’s dreadlocks—that they would “tend to get messy.” There’s certainly nothing wrong with requiring a business/professional image, or even banning “excessive hairstyles,” but employers need to make sure their definition of either, defined or undefined, takes into account the reality of diversity and their own, perhaps unexamined, cultural perspectives. The case is EEOC v. Catastrophe Management Solutions, 11th Cir., September 15, 2016.
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