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Sanford Heisler Sharp LLP | 20th Anniversary 2004 - 2024

Race Discrimination at Work: Title VII Should Cover Bias Against Dreadlocks

On Behalf of | April 12, 2018 | Race Discrimination

“We need not leave our common sense at the doorstep when we interpret a statute,” wrote a four-Justice plurality of the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989), the seminal ruling that gender stereotyping by an employer is actionable as sex discrimination under Title VII. And yet, nearly three decades later, courts often do leave common sense at the doorstep in turning a blind eye to race and gender discrimination.

Such is the case with Equal Employment Opportunity Commission v. Catastrophe Management Solutions, 852 F.3d 1018 (11th Cir. 2016), in which the U.S. Court of Appeals for the Eleventh Circuit held that Title VII does not prohibit discriminatory bias against dreadlocks. After all, asked the cloistered judges, what have dreadlocks to do with the race?

The victim of this glaring ignorance is Chastity Jones, the African-American plaintiff in Catastrophe Management Solutions who chose to forfeit a job offer rather than cut her dreadlocks. In 2010, Ms. Jones applied for a position as a Customer Services Representative for Catastrophe Management Solutions (CMS), an Alabama-based claims processing company. CMS’s human resources manager, Jeannie Wilson, who is white, offered the job to Ms. Jones—subject to one condition.

“Ms. Wilson asked [Ms. Jones] whether she had her hair in dreadlocks. Ms. Jones said yes, and Ms. Wilson replied that CMS could not hire her ‘with the dreadlocks.’ When Ms. Jones asked what the problem was, Ms. Wilson said ‘they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.’”

id. at 1021. Ms. Jones refused to cut her hair, and CMS rescinded its job offer.

Ms. Jones then filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), which found that CMS had violated Title VII because “prohibit[ing] dreadlocks constitutes an employment practice that discriminates on the basis of race.” E.E.O.C. v. Catastrophe Mgt. Sols., 11 F. Supp. 3d 1139, 1140 (S.D. Ala. 2014). Although hairstyle, unlike skin color, is not an immutable characteristic, the EEOC recognized that “the concept of race is not limited to or defined by immutable physical characteristics,” but instead “encompasses cultural characteristics related to race or ethnicity.” Catastrophe Mgt. Sols., 852 F.3d at 1022. In September 2013, the EEOC filed a Title VII race discrimination lawsuit on behalf of Ms. Jones in the U.S. District Court for the Southern District of Alabama.

The district court judge dismissed the lawsuit, reasoning, “Title VII prohibits discrimination on the basis of immutable characteristics,” and a “hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic.” Catastrophe Mgt. Sols., 11 F. Supp. 3d at 1143. A three-judge panel of the Eleventh Circuit affirmed the dismissal on the grounds that Title VII does not protect “cultural practices.” Catastrophe Mgt. Sols., 852 F.3d at 1030.

Restricting the meaning of “race” under Title VII to skin color defies legal precedents as well as common sense. For example, in Jenkins v. Blue Cross Mut. Hosp. Ins., 538 F. 2d 164, 168 (7th Cir. 1976) (en banc), the U.S. Court of Appeals for the Seventh Circuit upheld a race discrimination lawsuit based on an employer’s bias against Afros. At least one court in the Second Circuit has recognized the nexus between anti-dreadlock bias and racial bias. In Millin v. McClier Corp., 02 CIV. 6592 (GEL), 2005 WL 351100, at *5 (S.D.N.Y. Feb. 14, 2005), then-District Court Judge Gerard Lynch, who now sits on the U.S. Court of Appeals for the Second Circuit, ruled that “a reasonable factfinder could construe comments regarding [plaintiff-employee’s] dreadlocks as related to his race, religion, and/or national origin . . . dreadlocks are commonly associated with African-American, Rastafarian, and Jamaican culture.” Judge Lynch was merely acknowledging the obvious: It is impossible to disentangle racial bias from anti-dreadlock bias.

Applying Title VII to such implicit race discrimination, which targets a racial proxy rather than skin color itself, is in keeping with a long line of employment cases that outlaw discrimination based on gender stereotypes. As the four-Justice plurality in Price Waterhouse wrote, “in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. at 251. Since Price Waterhouse, federal appeals courts have repeatedly recognized that “stereotyped remarks can certainly be evidence that gender played a part in an adverse employment decision.” See e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004). This case law rightly protects countless female employees who have been stereotyped as “overly aggressive,” “cold and frigid,” “too emotional,” or “not feminine enough.”

An even more blatant stereotype is at play in a ban on dreadlocks—that “they tend to get messy,” in the words of Ms. Wilson, and are not as appropriate for professional settings as the smoother hair of white women. Employment discrimination nowadays is seldom more explicit; there are no “whites only” espresso machines, or “men’s only” police officer unions. Instead, discrimination presents itself in subtler ways, in rules about how one must act, talk and dress in order to conform to the “corporate culture” or “customer expectations.” That is all the more reason that Title VII must cover discrimination on the basis of cultural characteristics that are intertwined with race, ethnicity, and national origin.

The NAACP Legal Defense Fund made just that argument last week in its cert petition on behalf of Ms. Jones. The Supreme Court should take her case and uphold her and every Americans’ right to wear dreadlocks and earn a living.