C.    Black   Professional: How Courts Have Allowed Systematic Devaluation of Blacks and Black Culture Through Employee Hairstyle Prohibitions

Anna-Lisa F. Macon  Hair's the Thing: Trait Discrimination and Forced Performance of Race Through Racially Conscious Public School Hairstyle Prohibitions, 17  University of Pennsylvania Journal of Constitutional Law 1255 (April, 2015) (194 Footnotes)

  This Comment next looks to racially conscious hairstyle prohibitions in an employment context, via examination of Pitts v. Wild Adventures  and Rogers v. American Airlines.  Though courts largely fail *1269 to recognize and protect harm caused by employee hairstyle prohibitions,  the rich body of legal critique  spawned by such decisions will guide this discussion.

In Pitts, the plaintiff, a Black female, worked as a Guest Services Supervisor for the defendant/employer Wild Adventures.  The plaintiff's boss, a White female, "disapproved of [plaintiff's] cornrow hairstyle" and told the plaintiff to "get her hair done in a  pretty style."'  Plaintiff catered to her manager's wishes by styling her hair in "two strand twists," but her manager disapproved of this new hairstyle as well because it "had the look of dreadlocks."

Plaintiff refused to restyle her hair again because the defendant did not have a written hairstyle policy at the time.  In response, the defendant issued a memo prohibiting " dreadlocks, cornrows, beads, and shells' that are not  covered by a hat/visor."'  Plaintiff filed a complaint with the defendant's human resources department, filed an EEOC complaint, and later started litigation because she believed the company's grooming policy was racially discriminatory as it prohibited only "Afrocentric" hairstyles.

In denying plaintiff's argument that the grooming policy disparately impacted Black employees, the court found she could not establish a prima facie case of discrimination (under Title VII of the Civil Rights Act of 1964) by showing that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) similarly situated employees outside of her protected class were treated more favorably; and (4) she was qualified to do the job.

*1270 The court concluded the plaintiff was not discriminated against based on her race,  since "[g]rooming policies are typically outside the scope of federal employment discrimination statutes because they do not discriminate on the basis of immutable characteristics."  This determination is flawed in that it presumes the necessity of protective hairstyles is not an "immutable characteristic" for certain hair textures, and forces Black women to adopt hairstyles that damage their hair.

This approach is similar to the one used in the Rogers decision, where the court upheld an American Airlines' grooming policy that prohibited certain ethnic hairstyles.  Because an all-braided hairstyle was not a "natural" state for hair, the court found American Airlines could prohibit flight attendants from wearing braids.  Further, "[t]he court in Rogers referred to all-braided hairstyles as  not [being] the product of natural hair growth but of artifice' and then, in the same breath, offered American Airlines' suggestion for [plaintiff] to use a hairpiece as an alternative for her in covering up her naturally grown hair." "Such language exposes the court's incomplete understanding of the full implications of tightly coiled and kinky hair for [B]lack women in the United States."  In essence, the Pitts court, like the Rogers court, based its reasoning on the faulty premise that White hair textures are "natural" for all people. The Rogers court explicitly favored White hair textures through its suggestion "that the use of a ponytail of straight, artificial hair was an appropriate alternative to the all-braided hairstyle that it called  artifice."'  Further, by suggesting the plaintiff in Rogers could easily pull her hair back in a bun, as White women can, the court demonstrated a fundamental misunderstanding of hair diversity that varies from the norm.  Most importantly, the Rogers court "rejected what Blacks identify as a natural hairstyle--a hairstyle that allows Black women to wear their hair down and long while retaining the natural structure and texture of their hair."  Though there are a wide variety of hair *1271 types and textures within the Black community (and outside of it),  the Rogers and Pitts courts did not acknowledge hairstyles or hair textures outside of the "natural" White norm. In addition to the courts' illogical assumption that there is a baseline "natural" hair texture, the Rogers and Wild Adventures decisions raise the question of "why Black women are put to the task of justifying a hairstyle particular to their culture when White women and even Black men are not."  Racially conscious hairstyle prohibitions by employers "degrade[] and de-legitimize[] Black women by denying them the right to self-expression and determination . . . . [D]eclaring a hairstyle as categorically unprofessional and unacceptable degrades the class of people that view the hairstyle as a symbol of ethnic pride."  Court decisions like Rogers and Pitts must be overturned to protect the bodies and identities of Black Americans.