Last week the Eleventh Circuit Court of Appeals affirmed a lower court’s dismissal of a case the EEOC filed over a job applicant’s short dreadlocks. In 2010, Chastity Jones, an African American, applied for a position with CMS, a claims processing company in Mobile, Alabama. Ms. Jones showed up for her interview in a blue business suit and wearing her hair in short dreadlocks. After the interview, the human resources manager told Ms. Jones that she could not hire her with the dreadlocks. Ms. Jones replied that she would not cut her hair and CMS told her that she would not be hired. CMS had a race-neutral grooming policy that said that “Hairstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.”
The EEOC’s Complaint stated that dreadlocks are a method of hairstyling for black hair and are culturally associated with black persons. As such, the EEOC claimed that a prohibition of dreadlocks in the workplace constitutes race discrimination. The district court dismissed the complaint, finding that Title VII prohibits discrimination based on immutable characteristics, such as race, color, or natural origin and “a hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic.” On appeal, the EEOC argued that dreadlocks are a natural outgrowth of the immutable trait of race and that targeting dreadlocks can be a form of racial stereotyping.
The EEOC pled the case as a disparate treatment case, rather than a disparate impact case—but attempted to make both arguments to the Court. The Eleventh Circuit opinion spends some time distinguishing the two types of claims and ultimately, based its analysis on only the disparate treatment theory. It began by noting that Title VII does not define “race” and neither does an EEOC regulation. The Court spends several pages examining dictionary and other sources for such a definition, but finally decides that case law teaches that Title VII protects against discrimination based on immutable characteristics. The protection with respect to immutable characteristics does not extend solely to cultural practices like hairstyle or language use. The Court noted that the distinction is a difficult one: Discrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, but adverse action on the basis of a black hairstyle (a mutable choice) is not.
The opinion also takes some digs at the EEOC for citing its own Compliance Manual which the Court felt was inconsistent with positions that the EEOC had taken earlier. The Manual contains a statement that Title VII prohibits discrimination against a person because of cultural characteristics often linked to race or ethnicity . . . such as a person’s grooming practices. However, in 2008 the EEOC took a completely different position in an administrative appeal where it held 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 Court noted that the Compliance Manual position is also contrary to current caselaw.
Finally, the Court addressed requests by parties to interpret Title VII more expansively by eliminating the biological conception of race and instead to use cultural characteristics with race. The Court writes extensively about the difficulties in using “culture” as the basis for discrimination law due to the ever-changing concepts found under that interpretation. The opinion states that even if the court proved sympathetic to the “race as culture” argument, how would an employer know definitively what cultural practices are associated with a particular “race” and if those practices deserve protection under Title VII? Ultimately, the Eleventh Circuit found that the case law in this matter bound them to find that the EEOC’s claims were properly dismissed.
For employers, the primary take-away from this decision is that a race-neutral grooming policy, as seen above, appears to be blessed by some of the courts. However, the opinion does leave some wiggle room against a policy that would be based on black hair texture, as opposed to hairstyle—but is that really something an employer would do? The more interesting part of this opinion is the pages of dicta dealing with the race vs. culture conflict. It is not likely the last opinion we will see on the subject.