United States: Eleventh Circuit Declines EEOC's Invitation To Expand Race To Include Personal Expression Or Cultural Characteristics

Seyfarth Synopsis After a black woman's employment offer was rescinded because she refused to cut off her dreadlocks in violation of a company grooming policy, the EEOC sued under Title VII for discrimination on the basis of race.  The U.S. Court of Appeals for the Eleventh Circuit affirmed the dismissal of the claim because the EEOC failed to allege that the company discriminated against the woman because of an immutable characteristic of race, like skin color or hair texture. The ruling is an important one for employers on race discrimination issues and dress/grooming codes.

In E.E.O.C. v. Catastrophe Mgmt. Solutions, No. 14-13482 (11th Cir. Sept. 15, 2016), the EEOC filed a complaint in the U.S. District Court for the Southern District of Alabama on behalf of a black woman whose offer of employment was rescinded when she refused to cut off her dreadlocks in violation of her employer's grooming policy.  The district court dismissed the EEOC's complaint for failure to plead a claim and denied the EEOC's motion for leave to amend on the basis that amendment would be futile. On appeal, the Eleventh Circuit affirmed the district court's dismissal, holding that Title VII only prohibits discrimination based on immutable characteristics of race, such as skin color or hair texture—not based on individual expression or cultural practices tied to race, like the wearing of dreadlocks.

This ruling illustrates that courts will continue to uphold corporate policies implemented to achieve legitimate business interests—like maintaining employees' professional appearance and hygiene—where they do not discriminate based on natural race-based traits that a person does not choose or cannot change. Employers, however, should be mindful that a race-neutral policy may still give rise to a lawsuit where that policy disproportionately impacts persons of a particular race.

Case Background

Chasity Jones ("Jones"), a black woman, wore her hair in short dreadlocks to an interview for a customer service position with a claims processing company (the "Company").  Id. at 3.  After interviewing, the Company's human resources manager told Jones and a room full of other applicants that they had been hired.  Id. at 4.  Afterward, when speaking privately with Jones, the manager asked Jones "whether she had her hair in dreadlocks."  Id.  Jones said yes, and the manager told her that the Company could not hire Jones "'with the dreadlocks.'"  Id.  Jones replied that she would not cut her hair and the manager told her that the Company could not hire her.  Id. at 5.

At the time, the Company had a grooming policy that applied to persons of any race.  It stated: "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[.]"  Id.

The EEOC filed suit on Jones's behalf against the Company in the U.S. District Court for the Southern District of Alabama.  Id. at 2.  The EEOC alleged that, by rescinding Jones's employment offer because she refused to cut off her dreadlocks, the Company had intentionally discriminated on the basis of race in violation of Title VII of the Civil Rights Act of 1964 ("Title VII").  Id.  The district court, however, dismissed the EEOC's claim because it did not plausibly allege intentional racial discrimination by the Company.  Id. 

The district court also denied the EEOC's request for leave to file an amended complaint. The EEOC's proposed amended complaint alleged that the Company's grooming policy, which bans dreadlocks,  intentionally discriminates on the basis of race because dreadlocks are "physiologically and culturally associated with people of African descent."  Id. at 8. The district court, however, held that that Title VII only prohibits discrimination based on "immutable"—or unchangeable—traits, like race, skin color, and national origin—and dreadlocks did not fall into that category.  Id.

The Decision

On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed the district court's dismissal and rejected the EEOC's argument that Title VII prohibits discrimination based on individual expression or cultural practices tied to race. Id.

After explaining that this appeal required it to consider what "race" encompasses under Title VII, the Eleventh Circuit noted that neither Title VII nor the EEOC's regulations define the term.  Id. at 15.  The Eleventh Circuit interpreted the term by reviewing definitions around the time Title VII was enacted, only to conclude that the "quest for the ordinary understanding of 'race' in the 1960s does not have a clear winner." Id. at 19. Ultimately, the Eleventh Circuit found support for its holding "elsewhere."  Id.

In particular, the Eleventh Circuit looked to two cases that explored mutable versus immutable characteristics of race.  One rejected a sex discrimination claim by a male job applicant denied employment for long hair.   Id. at 20-21.  Another rejected a national origin discrimination claim by a Mexican-American employee fired for violating the company's English language-only policy by speaking Spanish at work.  Id. at 21-23.  The male applicant chose to grow his hair long and could have cut it and the Mexican-American employee chose to speak Spanish at work and could have waited to speak it outside of working hours.  The court acknowledged that drawing distinctions between mutable and immutable characteristics of race can be difficult, "but it is a line that courts have [nonetheless] drawn." Id. at 24. By way of further example, the Eleventh Circuit cited one case forbidding discrimination based on the wearing of a natural Afro but another permitting a ban against an all-braided hairstyle.  Id. at 24.

Based on the foregoing decisions, the Eleventh Circuit concluded that personal expression or cultural practice closely associated with race — like wearing dreadlocks — are not immutable characteristics under Title VII.  Also relevant to the Eleventh Circuit's decision was that the EEOC pursued only a "disparate treatment" theory of liability. This theory required the EEOC to allege that the Company intentionally discriminated against Jones because of her race.  Id. at 10.  The EEOC conceded that it had not pursued a "disparate impact" theory of liability, which would have allowed it to allege merely that the Company's practice negatively impacted black person s— whether or not the Company intentionally utilized the practice to do so.  Id.

Implication For Employers

The Eleventh Circuit's decision saves employers from having to guess at what cultural practices are associated with a particular race.  Employers may implement policies to achieve legitimate business interests— like maintaining professionalism in their employees' appearance and hygiene — as long as those policies do not discriminate based on natural race-based traits that a person does not choose or cannot change.

But given that courts must draw fine lines in deciding what constitutes an unchangeable racial characteristic in cases alleging race-based discrimination, employers should be careful to ensure that prohibited conduct does not fall close to the line.  Moreover, employers should monitor the impact of their policies to ensure that prohibited conduct does not disproportionately affect persons of a protected class.

Readers can also find this post on our EEOC Countdown blog here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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