Title VII of the 1964 Civil Rights Act prohibits employers from discriminating against employees on the basis of several things, among them race. The law, however, doesn’t define “race.”
It also doesn’t say anything about hair.
Which brings us to Chastity Jones.
In 2012, Jones, who is African-American, was denied a job because she wouldn’t cut off her dreadlocks. Jones sued, saying the company was guilty of race-based, disparate treatment. When the 11th Circuit Court of Appeals ruled against her last month, we got a glimpse of just how complicated race and identity really are.
Jones was offered a job in the customer service department at Catastrophe Management Solutions, a claims-processing company in Mobile, Ala. But there was a catch: During the interview, CMS’s human resources manager told Jones that the company could not hire her “with the dreadlocks,” which were against company policy. According to the 11th Circuit’s ruling, that conversation went down this way:
“When Ms. Jones inquired what the problem was, [the manager] said ‘[dreadlocks] tend to get messy, although I’m not saying yours are, but you know what I’m talking about.’ ”
Jones said she thought her hair was neat enough to work in a corporate environment — especially one in which she did not come into contact with the public. So she refused to change it. The company retracted the offer, and Jones complained to the Equal Employment Opportunity Commission. Three years later, the EEOC sued on her behalf.
The 11th Circuit judges ruled that CMS was right. The company hadn’t discriminated against Jones because she was black, the court said. The company’s prohibition against dreadlocks and other “excessive hairstyles or unusual colors,” the court decided, was race-neutral: Everybody was forbidden to wear them, not just people of African descent.
“Ms. Jones told CMS that she would not cut her dreadlocks in order to secure a job, and we respect that intensely personal decision and all it entails. But, for the reasons we have set out, the EEOC’s original and proposed amended complaint did not state a plausible claim that CMS intentionally discriminated against Ms. Jones because of her race. The district court therefore did not err in dismissing the original complaint and in concluding that the proposed amended complaint was futile.”
The EEOC, the judges ruled, “does not assert that dreadlocks — though culturally associated with race — are an immutable characteristic of black people.”
That was the key word: immutable. In the eyes of the law, your race is considered immutable because it cannot be changed from its natural state. And race cannot be the reason an employer acts against you. But what constitutes “race”? And for many black people, hair and race are inextricably interwoven.
In the end, the 11th Circuit’s decision hinged on semantics and a legal technicality. The judges said the EEOC sued on the basis of “disparate treatment” but argued a case that was grounded in the concept of “disparate impact,” a different legal threshold of Title VII:
“The [EEOC’s] arguments, which build on each other, are that dreadlocks are a natural outgrowth of the immutable trait of black hair texture; that the dreadlocks hairstyle is directly associated with the immutable trait of race; that dreadlocks can be a symbolic expression of racial pride; and that targeting dreadlocks as a basis for employment can be a form of racial stereotyping.”
Race is an elusive, fluid concept, and the courts have been manifestly reluctant to define it. What, in the end, makes a person black? The 11th Circuit wrestled with the idea in its ruling, dredging up old definitions and emerging with nothing more definitive than that “race” is nature, not nurture. Here’s more from the ruling:
“From the sources we have been able to review, 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.
“Although the period dictionaries did not use the word ‘immutable’ to describe such common characteristics, it is not much of a linguistic stretch to think that such characteristics are a matter of birth, and not culture.”
Dreadlocks don’t meet that standard, said Camille Gear Rich, a professor at the University of Southern California’s Gould School of Law. Rich briefly clerked for an 11th Circuit judge very early in her career, well before Jones; her writings about race and Title VII were cited in the court’s decision. And while she sympathized with Jones, Rich said dreadlocks are much more than just natural hair interlocking.
“I think the main takeaway from [the 11th Circuit’s] decision, especially in the way that it makes reference to the scholarship in this area,” Rich said, “is that it acknowledges that race really isn’t this kind of stable, immutable category of characteristics. It’s a social construction. …
“The EEOC, on behalf of the plaintiff in this case, is trying to make an argument that [dreadlocked hair] is just something that happens naturally. But when we start to think about this, contemporary dreadlocks particularly, it’s a highly styled form of hairstyle. People have written whole books on how dreadlocks should be styled.”
Noliwe Rooks, a professor of Africana and gender studies at Cornell University, offered a different point of view. She often writes about the nexus of beauty and race. And while many companies have what appear to be race-neutral grooming policies, Rooks said, the enforcement of those policies often can be affected by how employers think of race.
“I have yet to come across an actual court case … and it’s overwhelmingly black people that this is adjudicated around … where the texture of hair for another racial group has reached the point of a court case,” Rooks said.
The sticking point in Jones’ lawsuit or the many other cases that have been litigated, she said, is management.
“The supervisors are generally white and they often say, ‘I’m not used to hair like that,’ ” Rooks said. It is, she says, an individual decision that the company trusts supervisors to make in the interests of the company’s public image. “Corporate America is not comfortable with certain types of hairstyles that are generally associated with black people,” Rooks said.
She cited a case in the San Francisco Bay Area, where a young black man worked in the mailroom of a national corporation and was told to lose his dreadlocks. “He was working with people who had Mohawks, pink hair, piercings, tattoos,” Rooks said. “But he alone was singled out and told he needed to change his hair because his hair did not fit with the rules around appearance, hair length, hairstyle.”
The hair issue is not exclusively about black people. Native American men, for example, have fought for more than a century for the right to keep their hair long. In 2008, Adriél Arocha was barred from attending school in Needleville, Texas, unless he cut his hair. Adriél was a 5-year-old Lipan Apache. His parents considered his hair to be an outward manifestation of his heritage and religion. Men in his tribe only cut their hair after life-changing events, such as the death of a loved one. But his new school demanded that all boys have short hair “to teach hygiene, instill discipline, prevent disruption, avoid safety hazards and assert authority,” according to the suit his parents filed against the school district.
The 5th Circuit Court of Appeals said the request that Adriél pin up or hide his hair “offends a sincere religious belief” and affirmed a lower court’s decision in Adriél’s favor.
While some African-Americans have cited similar religious arguments for wearing dreadlocks (Rastafarians, for example), Cornell’s Rooks said that many feel their hair is a form of self-expression and cultural affirmation — which may be just fine until it bumps into a corporation’s desire to express itself.
That’s what happened in the case before the 11th Circuit, where race and culture intersected. The appeals court, like others before it, chose not to tackle the messy job of defining “race.” The judges concluded that society should take a shot at it:
“The resolution of these issues, moreover, could itself be problematic. … Even if courts prove sympathetic to the ‘race as culture’ argument, and are somehow freed from current precedent, how are they to … choose among the competing definitions of ‘race’?
“How are they (and employers, for that matter) to know what cultural practices are associated with a particular ‘race’? And if cultural characteristics and practices are included as part of ‘race,’ is there a principled way to figure out which ones can be excluded from Title VII’s protection?
“Our point is not to take a stand on any side of this debate … but rather to suggest that, given the role and complexity of race in our society, and the many different voices in the discussion, it may not be a bad idea to try to resolve through the democratic process what ‘race’ means (or should mean) in Title VII.”