Workplace Grooming Policy Against Dreadlocks Held Non-Discriminatory Under Title VII

Does enforcing a workplace policy against dreadlocks amount to intentional racial discrimination against a black or African American job applicant? Despite the Equal Employment Opportunity Commission’s endorsement of that theory, the Eleventh Circuit rejected its argument yesterday in EEOC v. Catastrophe Management Solutions (CMS), 2016 WL 4916851 (11th Cir. Sept. 15, 2016).

The EEOC brought CMS as a disparate-treatment case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). The purported victim was a black woman who had been hired by the defendant, only to have the job offer rescinded when she refused to cut off her dreadlocks. At the time of this adverse employment decision, the defendant had a facially race-neutral grooming policy that required employee hairstyles to “reflect a business/professional image”—a policy that the defendant’s human-resources officer had interpreted (in part) as a ban on dreadlocks.

The EEOC sued on the job applicant’s behalf, alleging that the defendant’s actions constituted intentional disparate treatment on the basis of race. But the EEOC disclaimed any argument that the defendant’s grooming policy had an unlawful disparate impact, which would have required statistical proof (and would not have supported compensatory or punitive damages). The district court then dismissed the complaint for failure to state a plausible claim of intentional discrimination and denied the EEOC’s motion to amend as futile.

Title VII prohibits employment discrimination on the basis of “race,” but it does not define that term. The EEOC thus argued that the concept of race “is a social construct” that “encompasses cultural characteristics related to race or ethnicity,” including “grooming practices” like dreadlocks. To support this argument, the EEOC cited similar pronouncements from its own Compliance Manual, which contains “subregulatory guidance” and agency interpretations of the federal discrimination laws administered and enforced by the EEOC.

The Eleventh Circuit acknowledged the EEOC’s effort (and calls from various commentators) to expand the scope of prohibited employment discrimination under Title VII, but in an opinion by Judge Adalberto Jordan, the court declined to do so. The court explained that it was bound by its own precedent and opinions of the former Fifth Circuit holding that Title VII protects against discrimination based only on “immutable characteristics” that an employee cannot change (for example, by cutting one’s hair). And the court noted that it was not alone: “As far as we can tell, every court to have considered the issue has rejected the argument that Title VII protects hairstyles culturally associated with race.” CMS, 2016 WL 4916851, at *10.

The court also raised difficult questions that it might have to answer if Title VII were expanded to protect “cultural characteristics”—questions about coverage, authenticity, and the transfer of cultural traits from one group to another. “[G]iven the role and complexity of race in our society,” the court seemed relieved to bow out of these debates: “[I]t may not be a bad idea to try to resolve through the democratic process what ‘race’ means (or should mean) in Title VII.” CMS, 2016 WL 4916851, at *12.

Regardless of the Eleventh Circuit’s prior precedent, the court’s hypothetical questions are likely to resurface. CMS shows that the EEOC is willing to pursue a more expansive theory of “cultural” discrimination in the courts, and the U.S. Chamber of Commerce and the Pacific Legal Foundation each thought the case was important enough to file an amicus brief supporting the defendant. The Chamber’s brief argued against conflating intentional disparate-treatment claims with unintentional disparate-impact claims under Title VII—and urged the court not to adopt an unpredictable liability scheme based on “armchair sociology.” (Brief and other information available at http://www.chamberlitigation.com/eeoc-v-cms.) PLF’s brief further bemoaned a “growing trend” of aggressive EEOC efforts “to expand the reach of Title VII” through litigation. (Brief available at http://www.pacificlegal.org/document.doc?id=1772.)

Posted by Lee Peifer.

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