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 Abstract

Excerpted From: D. Wendy Greene, Foreword to the Republication of Title VII: What's Hair (And Other Race-based Characteristics) Got to Do with It?, 92 University of Colorado Law Review 1265 (2021) (226 Footnotes) (Full Document)

Since the eras of racial slavery and racial apartheid in this country, racial discrimination and subordination on the basis of African descendants' natural hair texture have existed and persisted. African descendants' hair texture, like their skin color, has served as a marker of racial identity and consequently, the basis of their legal enslavement, harassment, and stigmatization in myriad spheres. Simultaneously, for many African descendants, hairstyles like Afros, braids, twists, and locs--styles that are often the result of the unimpeded growth of their naturally curly hair texture--have served as a source of cultural pride and tradition as well as cultural and religious expression. Yet, for nearly four centuries in the United States, it has been lawful to discriminate against, suppress, and police this critical feature of many African descendants' racial and cultural identity. Presently, the freedom with which employers (and other actors) engage in what I have called the “hyper-regulation of African descended peoples' bodies via their hair” is deeply rooted in the often brutal oppression of African descendants which sought to reinforce their legally and socially constructed status as unfree or marginally liberated even in the age of emancipation. Indeed, notwithstanding the purpose of the Civil Rights Act of 1964-- federal legislation that specifically redressed the longstanding and ongoing racial exclusion, subordination, and segregation confronting Black Americans in various sectors including employment--federal courts' interpretation of this seminal civil rights law has helped to preserve this state of affairs in American workforces.

Soon after the Civil Rights Act of 1964 was enacted, Black women and men spoke more publicly about discrimination they encountered when wearing natural hairstyles like Afros and braids. They also sought recourse under our federal civil rights laws by challenging employers' prohibitions against their natural hairstyles as a form of unlawful race discrimination. Renee Rodgers was one of these courageous souls. In 1981, a federal district court in Rogers v. American Airlines upheld American Airlines' grooming policy that prohibited Renee Rodgers, a long-term American Airlines employee, from wearing cornrow braids because they did not comply with the “conservative” image that the company was trying to convey. In so doing, the court ruled that American Airlines did not engage in unlawful race or sex discrimination under federal civil rights laws by compelling Ms. Rodgers, a Black woman, to change her cornrow braids as a condition of employment. Notably, however, the court opined that if American Airlines were to demand that Ms. Rodgers either change her afro or lose her job, then this ultimatum could constitute intentional race discrimination and thereby offend Title VII of the 1964 Civil Rights Act. In other words, if an employer discriminated against a Black woman for donning an Afro then she would be protected against unlawful race discrimination; yet, if the same Black woman braids her hair and is discriminated against, she has forfeited her legal right to be free from racial discrimination and the discrimination she suffers at the hand of the employer is declared lawful. One might ask: why would the federal district court erect such a head-scratching, hair-splitting legal outcome? Title VII: What's Hair (and other Race-Based Characteristics) Got to Do with It? explicates that federal courts' strict application of a judicially created doctrine--the immutability doctrine--is at the heart of it.

Shortly after Congress enacted the Civil Rights Act of 1964, federal courts decreed that Title VII's protections against race discrimination only governed discrimination on the basis of “immutable characteristics”: characteristics with which one is born, one cannot change, or are shared by all or only individuals who identify as a member of a particular racial group. Contrary to belief, there is no physical characteristic that a person cannot change or that all people who identify as white or Black possess. For example, a person who identifies as white may have a brown skin complexion and a person who identifies as Black may have a white skin complexion. However, like many members of society and jurists before them, federal judges in the twentieth and twenty-first century have treated a darker skin complexion and Afros as “immutable,” racial characteristics of Blackness or African ancestry. In turn, federal courts have defined African descendants' natural hairstyles like braids, twists, or locs as voluntary and “mutable, cultural characteristics,” that employers can freely regulate since Title VII does not prohibit discrimination on the basis of culture. Federal courts have often justified this legal outcome by reasoning African descendants are neither born with nor do they exclusively wear braids, locs, or twists and they are the result of superficial, personal, aesthetic choice rather than biology or birth. In so doing, these courts have disregarded the longstanding societal, cultural, and personal association with and reflection of Black identity via natural hairstyles, which often derive from an Afro hairstyle or hair texture.

Indeed, this myopic understanding of how race and racial discrimination operate persists in twenty-first century civil rights jurisprudence. In 2016 and 2017, the Eleventh Circuit Court of Appeals amplified it by pronouncing in EEOC v. Catastrophe Management Solutions: Title VII protects African descendants from racial discrimination on the basis of Afros because Afros are an immutable hair texture of African descendants, whereas an employer's recission of a Black woman's employment offer because she refused to cut off her locs did not violate Title VII because her locs were deemed a mutable, cultural hair style. In sum, the Eleventh Circuit reaffirmed that employers possess an unfettered legal right to discriminate against African descendants' natural hairstyles--except for Afros.

Notably, as the Eleventh Circuit was deciding this pivotal Title VII intentional race discrimination case, much like in the 1960s and 1970s, African descended women and men were reclaiming their natural hair texture. Black women in particular were increasingly adopting natural and protective hairstyles. This resurgence of the natural hair movement--and arguably a renewed celebration of hair diversity--throughout the African diaspora was occurring relatively quickly; Black women and men around the world were liberating themselves from systemic pressures, expectations, and mandates that they wear straight hair or faded hair respectively in order to obtain and maintain employment for which they were qualified. Discriminatory grooming policies that preserved these norms were once again being illuminated and contested through traditional media stories and civil rights litigation, as well as workers' public narratives via a burgeoning tool utilized to engender social and legal change: social media.

For example, in 2015, branches of the United States military were compelled to reform their strict grooming policies that not only barred natural hairstyles commonly worn by African descended servicewomen but also denigrated these styles as “unkempt” and “matted.” Due to the public petitions of African descended servicewomen alongside the female membership of the Congressional Black Caucus, military leaders acknowledged their natural hair bans were not simply offensive but they also constituted discrimination at the intersection of race and gender. Namely, this grooming policy reflected and perpetuated pejorative stigmas associated with Black women's natural hairstyles as inherently “unclean,” “unprofessional,” or “unattractive.” Additionally, the military's ban against natural hairstyles largely worn by African descended servicewomen resulted in their heightened regulation, discipline, and arbitrary deprivation of employment opportunities. By reinforcing the immutability doctrine in EEOC v. Catastrophe Management Solutions, the Eleventh Circuit declined to follow the military's lead, leaving countless Black workers in the private sector without legal recourse under federal civil rights law and thus vulnerable to a systemic form of racial discrimination that they have encountered for centuries.

When I decided to write this Article over fifteen years ago, I sought to illuminate how workplace grooming policies usurp workers' autonomy, agency, and freedom to express themselves in ways that are often intrinsic to their cultural identification as Black as well as how legal and social actors perceive it as such and discriminate against their grooming choices accordingly. While writing, it struck me that federal courts' narrow understanding of race and racial discrimination gave employers license to engage in the hyper-regulation or policing of Black workers who expressed themselves in ways that reflected their racial or cultural identity, which effectively perpetuated harmful, deeply entrenched stigmas associated with Blackness. Moreover, courts' adoption of the immutability doctrine simply sustained the structures that civil rights legislation like Title VII was poised to dismantle: institutionalized barriers to Black workers' equal employment opportunity, attendant economic security, and full inclusion in the contemporary workplace rooted in the stigmatization of Blackness.

Building upon the foundational works of critical race legal scholars such as Professors Paulette Caldwell, Kimberlé Crenshaw, Charles Lawrence, Robin Lenhardt, Ian Haney Lopez, Devon Carbado, and Mitu Gulati, I endeavored to offer a legal solution to institutionalized forms of racial inequity that African descendants continued to experience in the workplace under contemporary civil rights law. In doing so, it was important for me to excavate the historical linkages to ongoing forms of racial discrimination, namely, how the contemporary suppression of Black workers' expression of personhood via their appearance is rooted in ideologies first espoused during eras of racial slavery and apartheid. Relatedly, it was my hope to propose a viable legal framework to employ in Title VII race discrimination cases that demanded historical and social contextualization of the facts of each case and to define a critical legal concept: race. I aimed to propose a practicable definition of race that not only federal judges in Title VII race discrimination cases, but also other lawmakers, could employ--a definition of race that effectively captured two realities: (1) race is a social and legal construction which historically and contemporarily has not been confined to immutable characteristics that a socially defined group of people solely possess; and (2) racial discrimination likewise is not solely animated by unchangeable characteristics or characteristics with which one is born. Accordingly, I proposed that race should be understood as:

physical appearances and behaviors that society, historically and presently, commonly associates with a particular racial group, even when the physical appearances and behaviors are not “uniquely” or “exclusively” “performed” by, or attributed to a particular racial group.

Title VII: What's Hair (and Other Race-Based Characteristics Got to Do with It? served as the impetus for my body of legal scholarship and civil rights advocacy combating “grooming codes discrimination” in workplaces and other spaces. The article has even influenced broader individual, organizational, social, and legal insights and change. Since its publication, this article has been cited over sixty times and has helped to shape: workplace diversity, equity, and inclusion modules; judicial decisions; legal arguments in federal discrimination cases such as EEOC v. Catastrophe Management Solutions; the enforcement stance of civil and human rights agencies; an American Bar Association resolution; and civil rights legislation. In 2014, in support of their advocacy on behalf of African descended service women, I sent letters to the female membership of the Congressional Black Caucus, which included this Article and an appeal for federal legislative intervention to redress the pervasive yet lawful discrimination African descended workers faced in the private sphere when donning natural hairstyles. Four years later, in response to myriad forces like increased global media attention to race-based natural hair discrimination occurring in schools and workplaces nationwide, as well as the Eleventh Circuit's decision in EEOC v. Catastrophe Management Solutions, calls for lawmakers to cure the unjustifiable gap in civil rights protections created by such legal decisions intensified. And, they have acted.

Beginning with California in July 2019, thirteen additional states and over 30 municipalities have enacted “C.R.O.W.N. Acts” (Creating a Respectful and Open Workplace/World for Natural Hair Acts) or parallel civil rights legislation to address racial discrimination that African descendants systemically endure when donning natural hairstyles. I have had the privilege of serving as a legal expert testifying on behalf of as well as serving as a legal advisor for and co-drafting several of these legal reforms, including the federal C.R.O.W.N. Act, which the United States House of Representatives passed in September 2020 and in March 2021 was reintroduced in the 117 Congress. These legislative interventions clarify that alongside one's skin color, racial discrimination is animated by one's hair texture, hairstyle, and other characteristics that are often associated with racial identity like dress and language. Federal, state, and municipal legislation proffer a definition of race that embodies the understanding of race advanced in Title VII: What's Hair and Other Race-Based Characteristics Got to Do with It?. For example, the C.R.O.W.N. Acts in effect in California, New Jersey, New York, Virginia, and Montgomery County, Maryland define race as “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles” and specify that the term “'protective hairstyles,’ includes, but is not limited to, such hairstyles as braids, locks, and twists.” Washington State's law defines race as inclusive of “traits historically associated or perceived to be associated with race including, but not limited to, hair texture and protective hairstyles.” The federal C.R.O.W.N. Act clarifies that for the enforcement of federal civil rights statutes prohibiting race and national origin discrimination in workplaces, housing, public accommodations, and institutions receiving federal funds, race and national origin would constitute “characteristics commonly associated with race and national origin.”

In 2020, a confluence of social, political, economic, and legal forces-- domestically and abroad--animated a robust push for both legal and policy reforms aimed to dismantle and redress institutionalized racism in every crevice of American society including workplace grooming policies and norms that penalize African descended workers for simply wearing their hair as it naturally grows. For example, in December 2020, UPS rescinded its ban against natural hairstyles--a grooming policy that the company successfully defended in a central Title VII race discrimination case this article critiqued: Eatman v. UPS. UPS revamped its entire grooming policy by removing their prohibition against Afros, braids, and facial hair and adjusting rules that governed tattoos, piercings, and uniform length. According to the new chief executive of UPS, Carol Tomé--the first woman to hold this position in the company's 113-year history--the policy changes “reflect [UPS'] values and desire to have all UPS employees feel comfortable, genuine and authentic while providing service to our customers and interacting with the general public.” UPS is not alone in its newfound appreciation of the ways grooming policies undermine organizational commitments to racial and gender equity and cultivating a competent, diverse, and inclusive workplace.

This year--2021--marks the fortieth anniversary of the decision in Rogers v. American Airlines; much has changed in American law and society, though much has remained the same. African descendants continue to petition U.S. courts, legislatures, and employers to recognize their human and legal right to freely exercise their racial and cultural expression, yet they are doing so with greater success. African descended workers are able to pursue employment and perform their jobs a little more freely--without as great a fear of legally sanctioned discrimination when donning natural hairstyles and retaliation when challenging such discrimination. And, like civil rights gains of the past, contemporary victories in the fight against racial injustice and inequity are not only benefitting African descendants; all people regardless of their racial identities are the beneficiaries of decades-long collective advocacy of countless actors, including legal scholars, who have used their voices to ensure American civil rights laws and policies actualize equal and full citizenship, justice, freedom, and humanity for African descendants.

[. . .]

TITLE VII: WHAT'S HAIR (AND OTHER RACE-BASED CHARACTERISTICS) GOT TO DO WITH IT? D. Wendy Greene

Since the implementation of a league-wide dress code by the National Basketball Association (“NBA”), workplace dress and grooming codes have become a hot topic. The NBA's dress code garnered a lot of media attention because it arguably bespeaks what many believe is unthinkable in today's “colorblind” America: racism. The NBA requires players to wear “business-casual” attire when conducting team or league business. For the NBA, business-casual attire entails collared or turtleneck shirts with or without a sweater; dress slacks, khaki pants or dress jeans; and “presentable” shoes and socks--no “sandals, flip-flops, or work boots.” Players cannot wear sleeveless shirts, shorts, T-shirts, jerseys, or sports apparel, unless it is being worn during an event like a basketball clinic and it is team-identified and approved by the team. Additionally, the NBA prohibits players from wearing sunglasses indoors and from wearing chains, pendants, or medallions draped over their clothes.

Some players consider the ban on such things as gold chains and retro jerseys to be racist, targeting primarily the young Black players who wear hip-hop gear. Others deem it not necessarily a “racist” policy but rather a “racially targeted or racially motivated” act on the part of the NBA because the rule appears to be directed toward Black players. Players like Stephen Jackson regarded the NBA's decision to implement a dress code as a means to disassociate itself from a “negative” public image: “They're saying we need to look more professional, not so 'hood, not so hip-hop .... They don't want us to look like thugs .... But I'm hip-hop, that's the way I was raised and that's what I like.” If in fact the NBA's rationale for implementing the dress code is to disassociate the league from a “negative,” “hip-hop,” or “thug” image and the policy disproportionately impacts Blacks, is the dress code “racist”? If a significant majority of the players who wear the clothing and jewelry banned by the policy are Black, is the NBA treating Black players differently from non-Black players on the basis of race? What message is the NBA sending to players like Jackson who feel that their clothing is an intrinsic part of who they are and this revocation of their identity is imbued with negative associations such as “unprofessional,” “thug,” or “hood”?

The massive amount of attention surrounding the NBA's policy brought to light what courts often consciously reject when deciding Title VII cases: “race” encompasses more than just one's skin color. Historically and contemporarily in America, how one dresses, speaks, behaves, and thinks is also constitutive of race. The NBA's dress code also generates important questions concerning racism, racial discrimination, and employment rights. Specifically, is an “equal employment opportunity” truly equal when employability is contingent upon conformity to the employer's preferred cultural or racial norm? Does an employer's preference for a particular cultural or racial norm, which consequently stigmatizes the affected employees or applicants on the basis of their race, constitute unlawful discrimination under current federal employment discrimination law? This Article proposes that an employer violates Title VII when the following occurs: (1) an employer expressly bars employees from wearing clothing or hairstyles that are often associated with a particular racial or ethnic group; (2) an adverse employment decision such as a termination or failure to hire or promote results because an employee displays these prohibited “mutable” characteristics; (3) an employer's asserted rationale for implementing a policy banning mutable characteristics is grounded in presenting a “conventional” or “conservative” business image or the like; and (4) an employer's policy or decision fosters racial or cultural stigmatization.

Specifically, this Article maintains that characteristics commonly associated with a particular racial or ethnic group should fall into Title VII's current protected categories of race, color, and national origin. Claims involving employment decisions based on the display of racialized, mutable characteristics can be viable under the traditional Title VII analytical frameworks. However, they would only be successful if courts consider race, color, and national origin as encompassing more than “immutable characteristics” such as skin color and, in some cases, hair texture. Additionally, courts must look at the employer's decision within a historical and contemporary social context as well as from the angle of the employee or applicant, rather than simply focusing on the employer's intent to discriminate. In doing so, courts will place the employer's justifications and motivations for making its employment decision under much-needed scrutiny and will force employers to examine whether racial or cultural stereotypes influenced the underlying employment decision.

Part I of this Article delineates a pluralistic approach to examining disparate treatment cases that advances Title VII's statutory aim of “equaliz[ing] the footing of all employees without regard to the employer's subjective perceptions and preconceived ideas” about race, national origin, or color. Part II evinces that courts' maintenance of a perception of race which only constitutes “immutable characteristics” is contrary to earlier courts' depictions of race as well as contemporary understandings of race. Additionally, this view does not sufficiently address Title VII racial discrimination claims. Part III surveys three Title VII cases in which courts failed to adopt or reluctantly adopted a pluralistic analysis of race discrimination claims involving mutable characteristics such as hair and clothing. Parts IV and V present the inherent problems with focusing on an actor's discriminatory intent in race discrimination cases. These sections examine the theories of Professors Charles Lawrence and R.A. Lenhardt, which illuminate the harms resulting from a central focus on an actor's intent. Finally, Part VI revisits the three Title VII cases discussed in Part III and evaluates these cases under a revised disparate treatment analysis that incorporates a broader definition of race and a concentration on the plaintiff's perspective and racial stigmatization rather than the employer's intent to discriminate. This revised analysis of individual disparate treatment cases will more adequately protect employees and applicants from being subjected to discriminatory policies and decisions that Title VII proscribes yet are lawful under current Title VII jurisprudence.

[. . .]

I have a friend who is currently looking for employment. My friend is a Black woman who has obtained a Master's Degree in Teaching and a Ph.D. in Biochemistry; clearly, she is smart, intelligent, and industrious. However, one of her primary concerns is not whether she is capable of fulfilling the job qualifications and duties in her field but whether she will satisfy the physical appearance standards often imposed by employers. Therefore, she has decided not to wear her natural hair in a braided hair style in the event an employer contacts her for an immediate interview.

Recently, I decided to wear my hair in its “natural” state to work rather than in a straightened style. As I walked down the halls of the law school, a very accomplished African-American female student stopped me to compliment my hairstyle. Thereafter the student confided that she, too, wanted to no longer permanently straighten her hair and desired to wear her hair in a short, natural style. But, since it was fall “interview season” she felt that she could not afford to do so. If an employer elected not to hire my friend or the law student because it found their natural hairstyles to be “unprofessional” or “unconventional,” the protections of Title VII, to be free from racial stigmatization and thus racial discrimination in the employment context, would have failed both women.

Unfortunately, in light of current Title VII jurisprudence, for these two qualified Black women, the threat of being denied an employment opportunity because of their race is not conjectural; it is still very much a reality. Indeed, the NBA's implementation of a dress code has revealed the prevalence of grooming and dress codes in American workplaces as well as the resulting instances of employment discrimination which have been inadequately addressed by America's courts. Accordingly, it is imperative that courts adopt a more pluralistic analysis for Title VII individual disparate treatment cases in which employers ban the display of mutable, yet nonetheless racialized, characteristics and an adverse employment action, such as a failure to hire or promote or a termination, ensues because of the display of these prohibited characteristics.

The traditional McDonnell Douglas framework can still be applied in such cases. In fact, the revised analysis that I propose throughout this Article demonstrates its survival. This pluralistic approach first necessitates the courts' expansion of the definition of race to one that is representative of the historical and contemporary understandings of race, and thereby inclusive of mutable and “immutable” characteristics. Secondly, this revised analysis requires employers to assert a more substantial reason for implementing grooming and appearance policies than that they seek to present a “conservative” or “business-like image.” Finally, courts must shift their focus from the employer's intent to discriminate to the perspective of the plaintiff. In doing so, courts must consider the stigmatizing effects of the grooming and appearance policy and resulting adverse employment action on the applicant or employee.

The intense media attention devoted to the NBA's dress code provoked significant commentary about racism, racial stigmatization, and racial stereotyping. Hopefully, these poignant observations will encourage courts to engage in a more contemplative evaluation of Title VII race, color, and national origin discrimination claims involving similar employment policies proscribing race-based characteristics--before Title VII's progress is further hindered and gains are lost.

D. Wendy Greene, J.D., LL.M., Professor of Law, Drexel University Thomas R. Kline School of Law.

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