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Abstracted from: Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis under Title VII, 98 Georgetown Law Journal 1079-1131 (April 2010)(260 Footnotes) (Full Document)

AngelaOnwuachiWilligImagine that you are a white woman who works as a bartender in a popular casino in an alternate racial universe. Your employer has issued and enforces the following grooming policy as it relates to hairstyles:


Employees will adhere to the following appearance guidelines within the workplace. Failure to abide by these guidelines may result in disciplinary action, including termination.
Appearance: Employees must maintain a professional image at all times.
Hair: Extreme or fad hairstyles are prohibited.
• Males:
Hair must be worn in a short style and must not extend below the top of your shirt collar. Ponytails are prohibited.

• Females:

Hair must be worn in braids of any kind, including cornrows, locks, twists, or a short style that does not extend below the top of your shirt collar.

You file a lawsuit, alleging discrimination at the intersection of race and gender. You do not contest the difference in hair length restrictions placed on male and female workers. Courts have repeatedly applied the undue burden test--a special hybrid, disparate treatment-disparate impact test used in sex-discrimination grooming cases--and upheld policies that allow women to wear their hair long but require men to wear their hair short. These courts reason that such hair-length policies impose different but essentially equal burdens on men and women.

Instead, you challenge the policy as discriminatory at the intersection of race and gender. You could easily comply with the grooming code by just cutting your hair very short, but you want to wear your hair long and down--a prerogative that has been routinely recognized for women outside of the military context. You argue that you are uniquely and negatively affected by the company's grooming policy in a way that white men are not because their required short hairstyle matches the normative ideal for men in society. You further contend that the policy, like many others, is discriminatory because it is founded upon a race-based preference for black hair. You also explain that black women do not suffer the same harms because the costs of wearing their hair in braids, locks, or twists are not as burdensome in terms of time or money; after all, such styles are suited for black hair. You concede that you technically could wear your hair in braids, locks, or twists, but you explain that, compared to black hair, your hair is thin, straight, and fine. As a result, wearing your hair in any of these styles would impose burdensome costs from a monetary and psychological perspective and in terms of the time and energy it would take to maintain such a hairstyle every day.

You think your case is a slam dunk and, in all likelihood, you would be correct in our actual society. Many courts (and many people) in our society would find the notion of forcing white women to abide by a grooming policy that does not acknowledge or recognize the structure and texture of their hair ludicrous. Yet, antidiscrimination case law imposes just such a requirement on black women by upholding implicit demands that they straighten their hair and then maintain that hairstyle through various processes. This case law not only reinforces gender expectations about hair length, but also is based upon an invisible white and gendered norm that presupposes that black women can wear their hair straight and hanging down--in other words, fit within the gendered ideal for women--without altering the physical structure of their hair or enduring enormous burdens on their finances, health, and time.

Consider, for example, the case Darlene Jespersen filed against Harrah's Casino in Reno, Nevada. Jespersen was a twenty-plus-year veteran, white, female bartender at Harrah's, which had a dress code that read, in relevant part:

Beverage Bartenders and Barbacks will adhere to these additional guidelines:

Overall Guidelines (applied equally to male/female):
Appearance: Must maintain Personal Best image portrayed at time of hire.
Jewelry, if issued, must be worn. Otherwise, tasteful and simple jewelry is permitted; no large chokers, chains or bracelets.
No faddish hairstyles or unnatural colors are permitted.
• Males:
Hair must not extend below top of shirt collar. Ponytails are prohibited.

Hands and fingernails must be clean and nails neatly trimmed at all times. No colored polish is permitted.
Eye and facial makeup is not permitted ....
• Females:

Hair must be teased, curled, or styled every day you work. Hair must be worn down at all times, no exceptions.

Stockings are to be of nude or natural color consistent with employee's skin tone. No runs.
Nail polish can be clear, white, pink or red color only. No exotic nail art or length ....
Make up (face powder, blush and mascara) must be worn and applied neatly in complimentary colors. Lip color must be worn at all times.

Jespersen took issue only with the requirement to wear make up and refused to comply, which ultimately resulted in the end of her employment at Harrah's. Thereafter, Jespersen sued her employer, arguing disparate treatment and disparate impact on the basis of sex under Title VII. In deciding her claim, the Ninth Circuit, sitting en banc, first applied the undue burden or unequal burdens test. In grooming code cases under Title VII, a plaintiff may establish a prima facie case of discrimination by establishing that the challenged employment action had a discriminatory effect on the basis of a protected category; however, a grooming requirement “that imposes different but essentially equal burdens on men and women” is not considered to be discriminatory. Ultimately, the Ninth Circuit held that Jespersen had failed to prove sex discrimination because Harrah's grooming code requirements, while different for men and women, did not “place[] a greater burden on one gender than the other.”

Additionally, the Ninth Circuit rejected Jespersen's disparate treatment claim on the ground of sex stereotyping. Although the court noted that dress or grooming codes could result in an intentional discrimination claim based on sex stereotyping, it held that Harrah's policy did not support a stereotyping claim because it was not “adopted to make women bartenders conform to a commonly-accepted stereotypical image of what women should wear” and because it did not “objectively inhibit a woman's ability to do the job.”

Jespersen received significant, nationwide attention, and legal scholars have criticized its holding and reasoning. No scholar, however, has analyzed the case at the intersection of race and sex by asking: What if Jespersen had been a black woman? How would the focus of the case and thus the ensuing analysis been different?

One possibility is that a black Jespersen may have also challenged Harrah's hair grooming requirements for women. After all, what does it mean for black women when an employer orders its female employees “to wear [their] hair down at all times, no exceptions” and to have their hair “teased, curled, or styled every day”? For most black women, wearing their hair “down” would require that their hair be straightened, either by a hot comb or a chemical relaxer (otherwise known as a “permanent” or “perm”). Assuming that braids, locks, and twists were prohibited, the same processes would be required to tease, curl, or style the hair of most black women, as their natural hair is usually tightly coiled and grows into an Afro.

In sum, while the grooming requirements for Harrah's imposed significant burdens on women of all races, they presented additional challenges for black women based on the biological nature of black women's hair. This burden on black women would have been even greater if those same requirements were read by supervisors to prohibit hairstyles such as braids, locks, and twists. Even in our “post-racial” society, where race has purportedly become meaningless, significant phenotypical differences between Blacks and Whites are ignored in ways that reify the subordinate status of black women in the workplace.

This Essay uncovers the invisible white and gendered norms about hair that I contend have resulted in a misapplication of current antidiscrimination case law to hair grooming policies that prohibit natural hairstyles for black women, such as braids, locks, and twists. First, this Essay argues that antidiscrimination law fails to address intersectional race and gender discrimination against black women through hair-based grooming restrictions because it does not recognize braided, twisted, and locked hairstyles as black-female equivalents of Afros, which are protected as racial characteristics under existing law. The claim here is that, based on current rationales, natural hairstyles for black women should already be protected under antidiscrimination law and are currently excluded only because of courts' incomplete understanding of the nature of black women's hair. If courts fully acknowledged the biological differences between black and white hair, and examined these cases at the intersection of race and gender, they would understand braids, locks, and twists to be the functional equivalents of Afros and would view these hairstyles in the same light as other phenotypical and racial characteristics, such as skin color and nose width. In today's society, black women can change their noses and skin tones, just as they can change their hair, but the law would never uphold a restriction that implicitly required Blacks to modify either their skin tone or nose width.

Additionally, this Essay argues that courts should extend the application of the special “undue burden” test from gender discrimination cases to race discrimination cases and apply the test intersectionally in hairstyle-related grooming code cases brought by black women. Specifically, this Essay argues that antidiscrimination law fails to address such intersectional race and gender discrimination against black women because it does not recognize the undue burdens that such policies impose on black women to either hide or change a natural, phenotypical characteristic. Overall, this Essay explains the dangers of implicit racial bias in the workplace as demonstrated by raced and gendered norms in grooming codes that place a ban on hairstyles such as braids, locks, and twists.

Part I of this Essay discusses the case Rogers v. American Airlines, the seminal case on hair, grooming restrictions, and black women, which other courts cite pro forma in dismissing similar claims of race and gender discrimination. Part I also highlights key points from Professor Paulette Caldwell's analysis of Rogers in her article, A Hair Piece: Perspectives on the Intersection of Race and Gender.

Part II explains why the Rogers court reached the wrong conclusion under that court's own rationale. Specifically, it reveals how the court's application of its rationale was based on a flawed understanding of black hair and an assumption of white characteristics for black women's hair. Part II then describes the law regarding appearance regulations on hair and how the law has shifted or not shifted since Rogers. In particular, this Part exposes the case law's implicit (though admittedly essentialist) acknowledgment of race as a social construct, one that is defined by many phenotypical factors, including not just skin color, but also hair.

Part III examines how lawyers' past arguments for plaintiffs such as Rogers have failed to capitalize on the biology of black women's hair in seeking protection from discrimination based on employers' bans on hairstyles, such as braids, locks, and twists. Specifically, it analyzes critiques regarding past arguments that focused solely on the cultural connections between hair and race.

Part IV exposes antidiscrimination law's role in reaffirming racialized and gendered appearance standards, with white women as the gender norm and black men as the race norm, and explicates how these norms ignore the reality of black women's hair in its natural state and thus discriminate against them based upon a racial characteristic. In particular, it reveals how policies against braids, locks, and twists rest upon race-based preferences for white hair and hairstyles--regardless of whether braids, locks, and twists are “culturally” associated with black women today or not.

More specifically, Part IV begins by providing lawyers with the tools for explaining how a ban on natural hairstyles for black women leaves black women with far fewer choices in hair grooming than white women. Essentially, due to the biological nature of black women's hair, such policies currently leave black women with one of two choices if they wish to wear their hair long and hanging down: either (1) straighten their hair with a chemical relaxer or hot comb or (2) wear a weave or wig. Both choices require black women to either change the structure and texture of their natural hair or cover it up. In essence, with the exception of a miniscule number of white women whose hair structure and texture may bear a resemblance to those of black women, black women whose employers ban natural hairstyles are left with only one option for wearing their hair in its natural structure and texture: an Afro. Even that option is severely restricted by many employers who allow only short Afros. In this sense, many black women are not allowed to wear their natural hair exactly as it grows out of their heads as lengthily as white women are allowed to wear theirs.

Additionally, Part IV demonstrates the significant financial, temporal, health, and psychological burdens placed on black women as a result of these two non-natural choices for long hair that hangs down. In so doing, it highlights the evidence that supports a finding that employers' prohibitions of braided, locked, and twisted hairstyles have a disparate effect or place an undue burden on black women.

Finally, Part IV explicates how bans on natural hairstyles for black women are discriminatory against black women under traditional disparate impact theory. Even if most black women ultimately choose to straighten their hair, black women are significantly more likely than white women to be affected by hair restrictions that ban braids, locks, or twists.

Part V then studies and analyzes the termination experience of Judge Mablean Ephriam, formerly of Divorce Court, who was fired by Fox Broadcasting Company because of a dispute over “hair.” Finally, this Essay concludes by detailing the importance of analyzing the social meaning behind the repeated judicial validation of the invisible raced and gendered norms that underlie employers' prohibitions of natural hairstyles for black women.