May an employer deny employment to a Black applicant who would not cut her dreadlocks? A decision by the Eleventh Circuit yesterday goes to the very core of the anti-discrimination statutes: what does it mean to discriminate in employment on the basis of “race”? The panel unfortunately holds that “race” under Title VII is limited to “immutable” physical characteristics, rather than cultural and other traits associated with race. In so doing, it potentially creates a rift between two major federal race-discrimination statutes, Title VII and § 1981.
EEOC v. Catastrophe Management Solutions, No. 14-13482 (11th Cir. Sept. 15, 2016): A generation ago, in a pair of cases concerning the Reconstruction-era Civil Rights Acts – §§ 1981 and 1982 – the Supreme Court considered what was meant by the statutory term “race.”
The court adopted, as the legal definition of race, what it concluded Congress would have meant by that term in 1871. On that principle, the Supreme Court held that Congress “intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987).
This week, the Eleventh Circuit was confronted with a parallel question: what is meant by “race” under Title VII? But instead of beginning with the Supreme Court’s definition of “ancestry or ethnic characteristics,” it asked anew what Congress would have meant temporally – in 1964 – when it passed the new Civil Rights Act. It reached an answer that is arguably narrower than coverage under the earlier § 1981.
Stripped to its essentials, the case concerned a Black job applicant hired for a call-center job (with no direct contact with the public) who was told she would have to cutoff her dreadlocks. The company cited a grooming rule that prohibited “excessive hairstyles or unusual colors.” When the applicant refused, the job offer was retracted. The EEOC argued that the ban against the applicant’s distinctively ethnic hairstyle amounted to race discrimination.
The Eleventh Circuit affirms dismissal of the case. It holds, in a lengthy analysis, that Title VII only “prohibits discrimination based on immutable traits, and the proposed amended complaint does not assert that dreadlocks – though culturally associated with race – are an immutable characteristic of black persons.”
(Here, the term “immutable” should give pause. Was it not some four decades ago that the Supreme Court held, notoriously, that discrimination against pregnancy was not “sex” discrimination, because not all women are or become pregnant?)
Initially, the Eleventh Circuit questions why the EEOC did not pursue the action as a disparate-impact claim, i.e., challenging a race-neutral policy with a discriminatory impact on persons of a protected group. (While the opinion does not reflect the EEOC’s strategy here, one might imagine the practical difficulties of this approach: having to gaThere data on persons screened out of employment based on the policy, or creating equivalent labor pools. Disparate-impact claims tend to be costly, expert-witness driven cases.)
The panel then notes that Title VII nowhere defines race, nor has the EEOC attempted to define it through a regulation. Concluding that the definition must Therefore derive from a contemporaneous 1960s-era meaning, the panel says that “most dictionaries at that time tied ‘race’ to common physical characteristics or traits existing through ancestry, descent, or heredity.”
“From the sources we have been able to review, it appears more likely than not that ‘race’ [in Title VII], 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.”
While allowing that the word “race” nowadays expresses sociopolitical and cultural meaning, nevertheless “our possible current reality does not tell us what the country’s collective zeitgeist was when Congress enacted Title VII half a century ago.” The panel bolsters its narrow reading of “race” with citation to circuit decisions that upheld grooming and English-only policies over race-and sex-discrimination challenges. “Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices.”
The court also rejects analogy to two other recent Supreme Court decisions that favored employees in cases involving facially-neutral policies: Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015) (refusal to include pregnant employees in light-duty assignments) and EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015) (a grooming policy applied to a Muslim wearing a headscarft). In both cases, the panel reasons, the relevant statutes were written differently and more broadly.
Yet to hold that a Black woman’s hairstyle is not an ethnic characteristic blinkers reality. Even the panel recognizes implicitly that the hair-line is rather thin: under its rule, “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.”
Moreover, the Eleventh Circuit – without quite recognizing it – defined “race” more narrowly than § 1981 in Saint Francis College. Although that act defines “race” to include at a minimum physical characteristics, “[i]t is clear from our holding, however, that a distinctive physiognomy is not essential to qualify for § 1981 protection.”
This decision should hardly be considered the end of the story, though. The Eleventh Circuit covers the federal district courts in just one part of the U.S. (the states of Georgia, Florida, and Alabama). And nearly every state has separate civil-rights statutes that may be interpreted more broadly. Ultimately, the Supreme Court should bring the Eleventh Circuit into line with the widespread lay understanding that hair – however worn – is a racial characteristic that should be protected by Title VII.