Revised Opinion Issued After EEOC Seeks En Banc Review of “Dreadlocks” Decision

As we reported here, the Eleventh Circuit rejected a claim for intentional racial discrimination against an employer that had banned “dreadlocks” from the workplace in EEOC v. Catastrophe Management Solutions, 837 F.3d 1156 (11th Cir. Sept. 15, 2016). Apparently dissatisfied with that result, the Equal Employment Opportunity Commission filed a petition for rehearing en banc at the end of October, urging the full court to reject the “immutability” standard for racial characteristics under Title VII and to allow disparate-treatment claims based on allegations of “comparative racial burden.” A group including the NAACP Legal Defense & Educational Fund then filed an amicus brief arguing that facially neutral policies allegedly influenced by racial stereotypes can support an “undue burden disparate treatment claim.”

The court has not ruled on the EEOC’s petition, but the panel issued a revised opinion (also by Judge Adalberto Jordan) on December 13, 2016. EEOC v. Catastrophe Management Solutions, 2016 WL 7210059 (11th Cir. Dec. 13, 2016). The minor revisions addressed the EEOC’s effort to distinguish its own rejection of a race-discrimination claim in Thomas v. Chertoff, 2008 WL 4773208, at *1 (E.E.O.C. Oct. 24, 2008), where the EEOC had reasoned that “courts have held that grooming policies are typically outside the scope of federal employment discrimination statutes because they do not discriminate on the basis of immutable characteristics or certain fundamental rights.”

The elephant in the room is that plaintiffs who prevail on disparate-treatment claims based on intentional discrimination can recover compensatory and punitive damages—relief that is unavailable to plaintiffs asserting disparate-impact claims based on merely statistical evidence. The NAACP’s amicus brief thus noted that regardless of the EEOC’s disparate-treatment claim in this case, employers in other cases could still face claims from “employees who are victims of dreadlock bans and other similar policies” under a disparate-impact theory.

Posted by Lee Peifer.

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