A Federal Appeals Court Ruling That Companies Can Fire Employees for Having Dreadlocks was Appropriate
The Court of Appeals for the Eleventh Circuit recently issued a 3-0 decision affirming a dismissal of a complaint which alleged that, Chastity Jones, a black woman, was discriminated against, when she had a job offer rescinded because she refused to cut or change her dreadlocks, under the Civil Rights Act (42 USC Sec. 2000e, et. seq.) (the “Civil Rights Act”). The decision has received a lot of attention in the media, and rightfully so. The case centers around what we consider ‘race,’ and what constitutes choice vs. what is natural. In support of the woman that was affected here, and maybe in protest of the decision, people have taken to social media to share images of their hairstyles, including dreadlocks. Whether or not you agree with the morality and justness of the decision, the thirty-five page decision is well-reasoned, and even points out some questionable strategy by the Equal Employment Opportunity Commission (“EEOC”), which brought this case on behalf of the young woman. We expect our judges and the judiciary as a whole to exercise judicial restraint, to just interpret laws. In this case, the panel of judges did just that, and that’s why I argue that the court’s decision was reasoned and appropriate.
The facts of this case as identified by the court are as follows. Catastrophe Management Solutions (the “Company”) is an insurance claims processing company with an office in Mobile, Alabama. In 2010, it announced that it was seeking candidates to work as customer service representatives in its Mobile office. (The Company provides customer support services to other insurance companies, so the Company employees don’t have contact with the public.)
Ms. Jones, a young black woman, applied for the job via an online employment application. She was selected for an in-person interview. For her interview, she dressed in a blue business suit with her hair in short dreadlocks. Ms. Jones interviewed with a company rep, where the requirements of the position were discussed. A short time later, Ms. Jones, as well as other selected candidates, were brought into a room as a group. This group was the addressed by Jeannie Wilson, a Company human resources manager, and also a white woman, who told the group that they had been hired. Ms. Wilson went on to tell the group that they would each have to complete lab tests and other paperwork before their respective employment would begin. The successful applicants were also told that they could meet with Ms. Wilson in case anyone had a scheduling conflict for the labs and paperwork. Up through this point, no one had said anything to Ms. Jones about her hair.
After the group meeting, Ms. Jones met privately with Ms. Wilson to discuss changing her lab test date, as she had a prior scheduling conflict, which Ms. Wilson told Ms. Jones that she could return for the lab tests at some other time.
Before Ms. Jones got up to leave, the human resources manager, Ms. Wilson, asked Ms. Jones whether she had her hair in dreadlocks. Ms. Jones said yes, to which Ms. Wilson replied that the Company could not hire her “with the dreadlocks.” After Ms. Jones asked what the problem was, Ms. Wilson replied, “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” Ms. Wilson went on to tell Ms. Jones about a male applicant who was asked to cut off his dreadlocks in order work for the Company. After Ms. Jones responded that she would not cut her hair, the human resources manager told Ms. Jones that the Company could not hire her, and asked Ms. Jones to return the paperwork she had been given. Ms. Jones returned the paperwork as requested and left.
At the time that this happened, the Company had the following grooming policy in effect: “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[.]”
Subsequently, Ms. Jones filed a complaint with the EEOC. The EEOC then sued the Company in federal district court in Alabama. It alleged (in its proposed amended complaint) that “a prohibition of dreadlocks in the workplace constitutes race discrimination because dreadlocks are a manner of wearing the hair that is physiologically and culturally associated with people of African descent.” In other words, the Company’s decision to “interpret its race-neutral written grooming policy to ban the wearing of dreadlocks constitutes an employment practice that discriminates on the basis of race[;] that hairstyle can be a determinant of racial identity.” Further, the EEOC asked the district court to do away with the immutable/mutable distinction that has been applied in federal race discrimination claims. The district court dismissed the EEOC’s complaint, and denied its application to amend the complaint because amending the complaint would be “futile,” based on race discrimination jurisprudence.
The Circuit Court’s Analysis
In the written opinion, the court next turns its attention to the EEOC’s arguments on appeal. Before it reached those arguments, however, the court made it point to highlight a strategic choice by the EEOC. In race discrimination cases under the Civil Rights Act, there have been recognized two theories under which a complainant can proceed. These theories are referred to as (1) a disparate treatment theory, and (2) disparate impact theory. Under the disparate treatment theory, a complainant bears the burden of demonstrating that the employer intentionally discriminated against him or her on the basis of a protected characteristic. Under the disparate impact theory, a complainant bears the burden of demonstrating that an employment practice has an actual, but not necessarily intended, adverse impact on members of a protected group. In other words, disparate treatment requires that a plaintiff prove that an intent to discriminate by the employer because of that protected trait, while disparate impact does not require a showing of intent. The EEOC made it clear that it was NOT pursuing a disparate impact claim, only a disparate treatment claim. (In its arguments, according to the court, it seemed as if the EEOC was attempting to conflate the two theories, even though caselaw, including from the US Supreme Court, has made it clear that the two theories are not interchangeable.)
After discussing the EEOC’s strategy, the court moves to the actual arguments proffered by the EEOC. The question to be answered by the court is “whether the protected trait actually motivated the employer’s decision.” As this is a race discrimination case, the court set out on a discussion of what constitutes race for purposes of discrimination cases. The court notes the complicated and undefined nature of race. A definition for race is not found in any law. A definition for race is not found in any regulation promulgated by the EEOC. As the court looked to a number of academic sources, it found that many discussions of race included some shared physical component among a group of people. (The court also noted other, more recent scholarship which argues that race should not be guided by shared physical traits between members of a group, but is rather a social construct.)
The court then looked to caselaw to help define race. The cases it found and relied on a couple of discrimination cases where the court held that an employer’s policy that discriminates based on a mutable trait is not in violation of the law. (Immutable traits are those which are naturally occurring, such as skin color or your national origin. Mutable traits are traits of a person which are a consequence of choice exercised.) In one case, Willingham v. Macon Tel. Publ’g Co., the court ruled against a male employee’s sex discrimination claim who alleged that he was denied a position with a company because his hair was too long. In Garcia v. Gloor, the court ruled against an employee’s claim for national origin discrimination when he was fired for speaking Spanish to a co-worker on the job, and the employer had an English-only policy during working hours. From these cases, the court emphasized that the discrimination laws “‘focuses its laser of prohibition’ on discriminatory acts based on matters ‘that are either beyond the victim’s power to alter, or that impose a burden on an employee on one of the prohibited bases.'” Thus, caselaw in this circuit holds that the discrimination law “protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices.”
The court also went on to look at some cases from other jurisdictions which have maintained the same rule. In one case, the court recognized a claim for racial discrimination when she was denied a promotion because she wore her hair in a natural Afro. In another case, a discrimination claim was denied where an employer’s policy prohibited an all-braided hairstyle as such a hairstyle is not an immutable characteristic. The court also cites an article by Sharona Hoffman which discusses the concepts and roles of the distinction between immutable and mutable traits with this statement: “‘the concept of immutability,’ though not perfect, ‘provides a rationale for the protected categories encompassed within the antidiscrimination statutes.” Finally, and noteworthy, the EEOC did not allege that dreadlocks are an immutable trait of black persons, but rather that “black people choose to wear dreadlocks because that hairstyle is historically, physiologically, and culturally associated with their race.”
The EEOC also tried to argue dreadlocks are a “racial characteristic,” and that a prohibition on the expression of that characteristic constitutes racial discrimination. Oddly enough, the court cites a position taken by the EEOC in a 2008 case where the EEOC concluded that “in federal discrimination cases, 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.'” Further, the court cites nine cases from around the country which all rejected the argument that the federal discrimination laws protect hairstyles associated with race.
The court then moves on to a discussion about whether the concept of race should be expanded for purposes of discrimination law. The court concludes that expanding the concept of race for discrimination law purposes is a task better suited for legislatures and the democratic process. Ultimately, the court found that wearing dreadlocks is a choice made by that person, not a natural and unalterable trait of a black person. As such, the employer’s termination of Ms. Jones was not in violation of the federal discrimination law.
Why I Believe the Court’s Decision was Appropriate
I originally became aware of this case when a friend of mine sent me a Slate blog post (which referenced Huffington Post article) about it. I was at home and another friend of mine was visiting (a woman who is mixed black and white), so we started talking about it. As we were talking about it conceptually, I hadn’t yet read the court’s opinion, just the blog post I was sent. While I don’t think hairstyle is any reflection on a person’s ability to perform a job, employer’s apply these kinds of rules all the time. Uniforms. Make-up. Facial hair. As my friend and I started talking about it, we looked at a stock image that was embedded in the blog post I was sent. She then said that if the plaintiff in this case had dreadlocks like the one in the stock image (which was neat and close-cropped), that it would be wrong to fire her for that. If, however, the plaintiff’s dreadlocks were like that of The Weeknd’s, then it makes sense to enforce the policy because his hair is all over the place and not professional.
I love my friend, but it’s exactly for this reason why the court’s restrained opinion was the right approach. As I stated when I opened this piece, we want and expect our judges and our judiciary to interpret laws, not to create them. Moreover, we want our judges to avoid inserting their subjective opinions into fact-specific inquiries. The question before the court in this case was not whether the judges believed that this woman’s hair was suitable for the corporate environment. That would require the judges to look at her hair at the time her job offer was rescinded and decide if her hair was suitable – to them. The question before the court in this case was whether the policy that the employer had in place targeted black people.
Another reason why this opinion came down the right way is because there is some fifty years of discrimination law jurisprudence. While a court may go against precedent, this case was asking some really deep and involved questions, such as what is race. That should be something for legislatures and voters to decide, not a three judge circuit court panel. If Congress wants to open race discrimination suits to protect expression of cultural identity, it can amend the laws to do so.
Next, while I’m not a huge fan of the ‘slippery slope’ argument, I really wondered about that when I read this opinion. The EEOC wanted the court to adopt a really expansive view of what could constitute racial discrimination. The EEOC argued here that dreadlocks are physiologically and culturally associated with being black, and that an employer’s prohibition on such expression is discrimination. Which begs the question of what happens if a white person chose to wear dreadlocks? The EEOC, in this case, argued that the white person could then sue for racial discrimination. Expanding the breadth of racial discrimination as the EEOC argued for in this case could, conceivably, open the door to anyone suing for some kind of expression, even the clothing they wear, if they argued it was a cultural expression of race. (How does someone like Rachel Dolezal fit into this?) As the court suggested, adopting the EEOC’s argument would require courts to determine whose claims are authentic and deserving of protection, versus those claims which are not authentic.
Finally, and as pointed out previously, the EEOC made certain choices as it related to this case. It could have, at least to achieve some kind of reparation for this woman, chosen to bring a disparate impact claim. I can’t speak as to how the EEOC decides which cases to appeal, and why it takes a certain approach over another in any particular case, but the EEOC made strategic choices in this case that left this plaintiff without a remedy. While the court never said the EEOC would have been successful under a disparate impact claim, the opinion did express plenty of concern with the EEOC’s overall strategy in this case.
While I am a first generation American (Guyanese and Dominican), I will never know what it’s like to be black in America. It’s an experience that only someone who is black can attest to. I can sympathize all I want, and say that, “I get it. I’m a minority, too,” but I will never be able to get it. To have a job offer rescinded because of my hairstyle would infuriate me, so I agree with Ms. Jones’ decision to pursue a discrimination claim against the Company. As a lawyer, though, we need rules. You don’t want your case to rely on how a judge – who may be appointed, while others are elected – feels on any given day, their prejudices or stereotypes. Sometimes those rules that create the framework may seem rudimentary or antiquated. To say that a trait is immutable or mutable, to me, is antiquated. (As a mixed first generation American, do I even have immutable traits? What kind of hair is natural to me? Is speaking Spanish a protected trait of my national origin?) Notwithstanding, these kinds of questions should be left to Congress and legislatures around the country to define, not the panel of judges sitting for the 11th Circuit. The federal statute at issue states that “it shall be an unlawful employment practice for an employer to (1) fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” Congress has decided to use these discrete categories to identify protected classes. While our understanding of these concepts is always up for discussion, in the courtroom, we as practitioners need to know who falls into a protected class and who doesn’t. This court’s decision to maintain the mutable vs. immutable distinction gives us those rules so that the judiciary can operate. It is for these reasons why it was appropriate for this court to uphold as legal the termination of employment of someone for having dreadlocks.