The subject of dress and grooming has been a controversial one as to the scope of the discrimination laws. In the most recent case, a federal appeals court rejects a claim of the Equal Employment Opportunity Commission (EEOC) 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." EEOC v. Catastrophe Management Solutions, 129 FEP Cases 935 (C.A. 11, Sept. 15, 2016).
An African-American job applicant was interviewed and offered a position as a customer service representative, a position that did not have contact with the public. She was told, however, that she could not be hired with the dreadlocks, and she was not hired when she refused to do so. At the time, the employer had a race-neutral grooming policy which read as follows:
"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 hair styles or unusual colors are acceptable."
The EEOC sued on behalf of the applicant, and cited its Compliance Manual, Section 15-II, at 4 (206), which indicates: "Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or a manner of speech." The Eleventh Circuit Court of Appeals refused to give the EEOC guidance much weight in determining the scope of Title VII's prohibition of racial discrimination, noting that the EEOC had changed its position on the issue over the years and failed to address certain court precedents taking a different position.
The court discusses the history of the word "race," noting that Title VII does not define the term nor has the EEOC ever seen fit to issue a regulation defining the term. Therefore, the court concludes that the meaning of the word "race" is a question of law for the court. The Eleventh Circuit concludes that it is more likely than not that "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. More importantly, although dictionaries do not use the word "immutable" to describe such common characteristics, it is not much of a stretch to think that such characteristics are a matter of birth, and not culture. If it were otherwise, it would create a problematic category for legal intervention because culture in a broad sense encompasses almost any possible motivation for human behavior.
The court goes back to its earlier cases providing guidance, noting that for many years courts have allowed employers to reject discrimination claims by male applicants who were denied a position because their hair was too long. Such rulings are based on findings that a hiring policy that distinguishes on grounds such as grooming or length of hair is related more closely to the employer’s choice of how to run its business than equality of employment opportunity. Thus, courts have adopted the view that distinctions in employment practices between men and women on the basis of something other than immutable or protected characteristics do not inhibit employment opportunity in violation of Title VII. This is particularly so where grooming and hair standards are also imposed on female employees, and thus in that sense men and women are treated equally. The concept is that Title VII protects against discrimination based on immutable characteristics - those that an employee is born with or cannot change. This analysis suggests that Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices. The court gives an illustration that 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.
The Eleventh Circuit notes that almost every court to have considered the issue has rejected the argument that Title VII protects hair styles culturally associated with race. Such issues are better resolved through the democratic process, particularly given the role and complexity of race in our society.
While the court respects the claimant’s intensely personal decision to not cut her dreadlocks, such a complaint does not state a plausible claim that the employer intentionally discriminated against her because of her race. In a footnote, the court notes that religion is different from race as Title VII expands the protection for religion to cover "religious observance and practice." In contrast, race discrimination laws do not prohibit discrimination on the basis of cultural practices associated with race.
Editor’s Note: While the current case reflects the prevailing view among the courts, dress and grooming requirements remain controversial and claims continue to be filed. Many employees prohibit extreme hair and grooming styles including, but not limited to, unusual hair colors, dreadlocks, braids, corn rows, etc. Further, religious discrimination laws are broader than the race discrimination laws, as noted by the court, because they protect religious practices and also require reasonable accommodation of such religious practices.
