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We cannot hire you “with the dreadlocks”

Questions have arisen after an African-American woman was denied employment due to her dreadlocked hairstyle.

We cannot hire you “with the dreadlocks.”  Chastity Jones heard these words as she watched a job opportunity be taken away as quickly as it was offered.

Chastity Jones is a black woman who applied for a customer support position with Catastrophe Management Solutions (CMS) in May of 2010.  She completed the online application and was selected to interview.  Eager for the opportunity, Jones arrived to her interview several days later wearing a blue business suit, with her hair groomed in short dreadlocks.  After completing the selection process, Jones was informed that she had been offered a position with CMS and was to begin employment upon completion of lab tests and other paperwork.

“They tend to get messy . . . you know what I am talking about.”

Needing to change the date of her tests, Jones met with CMS’s human resource officer Jeannie Wilson, a white woman, who informed Jones that she could return at a later date to complete her testing.  As Jones left the office, Wilson asked if Jones’ hair was in dreadlocks.  This was the first time a CMS employee had acknowledged Jones’ hairstyle; notably, after she had received the offer from CMS.  Jones affirmed Wilson’s question and was told that CMS would require her to cut her dreadlocks prior to employment.

CMS has a grooming policy that states “all personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image . . . hairstyles should reflect a business/professional image.  No excessive hairstyles or unusual colors are acceptable.”  After being told to cut her dreadlocks, Jones asked Wilson why her dreadlocks were an issue, to which Wilson replied, “They tend to get messy . . . you know what I am talking about.”  Jones informed Wilson that she would not cut her hair for the position, at which point, Jones was told to leave because CMS was rescinding its offer as a result of her non-compliance.  Jones walked away from CMS with not only one less opportunity, but also with the same head of hair that she maintained when she was offered a position with the company.

Title VII forbids discrimination based on immutable characteristics such as race, color or national origin.

Chastity Jones’ story does not end here.  The Equal Employment Opportunity Commission (EEOC) filed a lawsuit against CMS claiming their conduct discriminated against Jones on the basis of race pursuant to a violation of Title VII of the Civil Rights Act of 1964, specifically, 42 U.S.C. §§ 2000e-2(a)(1) and 2000e-2(m).  The lawsuit was dismissed in United States District Court for the Southern District of Alabama for failure to state a claim and the court denied the EEOC’s motion to amend.  The EEOC appealed the judgment to the United States Court of Appeals for the Eleventh Circuit.  After oral argument to a sitting three-judge panel, the Eleventh Circuit affirmed the district court’s denial of Jones’ discrimination claim.

Title VII forbids discrimination based on immutable characteristics such as race, color or national origin.  An immutable characteristic is a characteristic that is unchanging over time or unable to be changed.  A claim for a Title VII violation may be advanced under the disparate treatment theory, the disparate impact theory, or through both theories.  The key distinction between the two theories is that in the disparate treatment theory, the action on the part of the employer must be intentional.

By pursuing the disparate treatment theory only, the Court dismissed a majority of the EEOC’s evidentiary allegations surrounding any impact the policy may have had on black people as a racial group. 

The EEOC only advanced the disparate treatment theory, which is significant because this required Jones to show that CMS intentionally discriminated against her based on a protected characteristic, such as her race.  Jones’ complaint would need to allege CMS intentionally refused to hire her because she was a black woman.  From the Court’s opinion, it appears that the disparate treatment theory is the more stringent threshold test.  If the EEOC would have proceeded under the disparate impact theory, Jones would have had to prove that CMS’s employment practices had a disproportionate effect on other black applicants.  The facts of the Court’s opinion suggest that Wilson informed Jones that another applicant was asked to cut his dreadlocks as well, however, the opinion does not specify this applicant’s race or whether or not he cut his dreadlocks to obtain the position with CMS.  The usage of the word “applicant” by Wilson rather than “employee” suggests that this applicant refused as well.

It is unclear why the EEOC only advanced the disparate treatment theory, but this route of redress effectively made Jones’ discrimination claim much more difficult to plead.  The EEOC clarified during oral argument that it was only pursuing Jones’ claim under the disparate treatment theory, yet the Court noted that the EEOC blended the two theories amongst its pleading allegations.  This probably was not a misstep by the EEOC, but it did have a significantly negative effect on Jones’ complaint.

The Court determined that race involves similar physical characteristics shared by certain people that are passed by ancestors. In other words, inherited physical characteristics are a matter of birth, and not culture.

By pursuing the disparate treatment theory only, the Court dismissed a majority of the EEOC’s evidentiary allegations surrounding any impact the policy may have had on black people as a racial group.  Perhaps the EEOC could have done further discovery to see if there were other black applicants with similar ethnic hairstyles who were adversely affected by CMS’s grooming policy during their hiring phase, such as the applicant Wilson referred to.  In any event, Jones’ complaint lost a fair amount of teeth because the record contained little to no evidence of intentional racial discrimination beyond Wilson’s statements, assuming those comments even qualified as intentional discrimination.

Being presented squarely with a challenge under the disparate treatment theory, the Court analyzed the question of whether or not CMS relied on Jones race in their decision not to hire her. Title VII does not expressly define “race” in its statutory language, thus the Eleventh Circuit looked to secondary sources from the time period Title VII was enacted to interpret the term.  The Court determined that race involves similar physical characteristics shared by certain people that are passed by ancestors. In other words, inherited physical characteristics are a matter of birth, and not culture. Unsurprisingly, the Court unearths this social sciences authority only to “look for answers elsewhere” since there is no clear understanding of what race fully entails because it is a social construct.

Overall, courts have found that hair texture is an immutable characteristic while a hairstyle is not. 

The Eleventh Circuit then shifted its focus to past precedence laid out in Willingham v. Macon Telegraph Publishing Company and Garcia v. Gloor.  The more comparable case is Willingham, which involved a man who was denied a position because his hair was too long.  The Court in that case noted that a hiring policy that distinguishes on a trait such as grooming, relates to the manner the “employer operates their business rather than equal employment opportunity.”  What is gleaned from this case is the proposition that Title VII protects immutable characteristics, not cultural practices.  In Garcia, the Court emphasized that the evil Title VII was created to combat, were those discriminatory acts “based on matters . . . beyond the victim’s power to alter, or that impose a burden on an employee on one of the prohibited bases.”

These two prior decisions, Willingham and Garcia, were decided in 1975 and 1980, respectively.  Of the other precedents cited, only one decision, Cooper v. Am. Airlines, Inc., is a sister circuit case from the United States Court of Appeals for the Fourth Circuit that was decided in 1998.  The other decisions are from federal district courts with the most recent case being decided in 2008.  Of course, using past precedence from other courts is persuasive, but an intermediate appellate court is not bound to apply the authority of a lower court or a sister circuit court.  This manner of structuring proof merely furthers the doctrine of stare decisis, which requires a Court to follow prior decisions unless the case was hastily decided or was decided contrary to judicial principles, rather than fleshing out the factual distinctions of Jones’ claim.  The line of case law supporting the Court’s denial is not outdated, but it stands to reason that perhaps this topic of grooming policies should be revisited by the deciding governmental bodies.

Overall, the Eleventh Circuit has found that hair texture is an immutable characteristic while a hairstyle is not.  If Jones had arrived with her hair in a natural afro rather than dreadlocks, her case may have turned out differently.  The EEOC alleged that dreadlocks form “in a black person’s hair naturally, without any manipulation, or by manual manipulation of hair into larger coils.”  The natural formation of dreadlocks would seem to be a product of the hair texture.  If so, this raises some question as to whether or not the hair is an immutable characteristic if a black person chooses not to cut his or her hair.  The Court, however, would reason to reject this idea because a natural outgrowth is not the same as natural texture.  Furthermore, this allegation was pleaded in the amended complaint and the Court dismissed Jones’ motion to amend, thus negating the allegation.

The Court does return to examining social sciences that have called for a broadening of the meaning of race to include one’s culture into the definition of Title VII. 

Unfortunately for Jones, the Court had, at this point, entrenched itself in past precedent and tied its own hands through stare decisis.  In any event, the EEOC made a final-stand effort by alleging that CMS violated standards in the EEOC Compliance Manual.

The pertinent statute states that Title VII forbids discrimination based on “cultural characteristics that may be linked to a person’s race or ethnicity, such as their grooming practices.”  What is interesting is that this statute became law in 2006, but the EEOC itself ruled in direct opposition to the statute in Thomas v. Chertoff.  In that particular case, The EEOC upheld an employment grooming policy that prohibited dreadlocks by finding that the policy fell “outside the scope of federal employment discrimination statutes.”  It is unclear whether or not Jones’ case marks a new direction for the EEOC, but their advancement of this compliance argument in such a haphazard manner without refuting their own administrative decisions, quickly undermined any persuasive value that the manual should have been given.

The Eleventh Circuit informs us that as a judicial body, its function is to interpret statutes and leave questions of sociology to the political branches.

The Court does return to examining social sciences that have called for a broadening of the meaning of race to include one’s culture into the definition of Title VII.  There are legal scholars who share the opinion of D. Wendy Greene, a Cumberland School of Law professor who specializes in grooming codes discrimination scholarship, who believes that race “includes physical appearances and behaviors that society, historically and presently, commonly associates with a particular racial group even when the physical appearances and behavior are not ‘uniquely’ or ‘exclusively’ ‘performed’ by, or attributed to a particular racial group.”  It stands to reason that Jones’ claim would have more plausibility when viewed through this all-encompassing lens. However, there are scholars like Richard T. Ford, a professor at Stanford Law School, who see culture as a much more fluid concept that poses a “problematic category” for the law because it can be influenced heavily by human behavior.

After peering into the current opinion of social sciences on the concept of race and culture, the Court shied away from pursuing any decisive path because there is no clear resolution on the topic.  To break new ground in an arena of such high contention and take it out of the hands of the legislature would appear cavalier in the face of clear precedence.  Further, the Court reasoned that accepting a broad definition of race to include culture would begin the difficult interpretive battle of which cultural characteristics should be protected under the Title VII.  The Eleventh Circuit informs us that as a judicial body, its function is to interpret statutes and leave questions of sociology to the political branches.  With the lack of a concrete definition of race, the Court calls upon Congress to define race in Title VII so it may be better equipped to rule on future discrimination challenges.  The Court had the opportunity to depart from prior decisions, but this would have been difficult to justify, especially since Title VII does not include cultural practices in its definition of race.  The Eleventh Circuit was bound to interpret the statute as drafted by the legislature and apply it to the given issue presented.

Rather than take a firm stance on the interpretation of race in Title VII, the Court falls back on the principle of stare decisis to dismiss Jones’ claim and ping–pongs the issue back into the hands of the political bodies.  It is difficult to fault the Eleventh Circuit’s decision, although the facts behind Jones’ claim seem to reflect racial undertones, given Wilson’s statements.  As the EEOC served the racial ball into the judiciary’s field, the legislative body now finds itself receiving a return volley from the Court with further instruction of who must define what race entails if the Court is to protect certain classes of people from adverse employment actions and missed opportunities.

Tommy Harvey III
About Tommy Harvey III (7 Articles)
Tommy Harvey III is a third year law student and serves as an Associate Editor for the Campbell Law Observer. He is originally from Atlanta, GA and received his undergraduate degree from the University of Miami. Tommy has worked for the United States Attorney’s Office, Eastern District of North Carolina and the Mecklenburg County District Attorney’s Office in Charlotte, NC. His legal interests include Civil Rights Law, Constitutional Law, and International Law. Tommy is a member of the Campbell Law Trial Team, and serves as a peer mentor as well as the current Vice President and past Treasurer for the Campbell Law Black Law Students Association.