An employer’s ban on dreadlocks and the Equal Employment Opportunity Commission’s willingness to file a lawsuit to vindicate an employee’s rights has opened a legal debate on the meaning of “race” under Title VII of the Civil Rights Act of 1964.

Finding the Commission failed to allege in the proposed amended complaint a plausible claim that the employer intentionally discriminated against an African-American employee on the basis of her race, the federal appeals court in Atlanta has dismissed the Commission’s discrimination lawsuit brought under Title VII of the Civil Rights Act. EEOC v. Catastrophe Management Solutions, No. 14-13482 (11th Cir. Sept. 15, 2016). The Eleventh Circuit has jurisdiction over Alabama, Florida, and Georgia.

In its opinion, the Court discussed the distinct differences between disparate treatment and disparate impact, immutable versus mutable characteristics under Title VII, race as defined by Title VII, race-neutral grooming policies, and the EEOC’s inability to explain its course change on race and Title VII.

Background

Alabama-based claims processing company Catastrophe Management Services (“CMS”) provides customer service support to insurance companies. The company’s dress code states that “all personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines …. Hairstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.”

African-American applicant Chastity Jones was selected for a customer service position with CMS. Then, in a meeting, CMS’s human resources representative told Jones she would have to cut her dreadlocks before she began employment. When Jones said she would not cut her hair, she was told that she could not be hired. The position Jones applied for did not involve face-to-face contact with customers.

Jones filed a charge against CMS with the EEOC alleging race discrimination and the EEOC sued on her behalf. The district court dismissed the complaint (under Federal Rule of Civil Procedure 12(b)(6)) because it did not plausibly allege intentional racial discrimination by CMS against Jones. The district court also denied the EEOC’s motion for leave to amend, concluding the proposed amended complaint would be futile. The EEOC appealed to the Eleventh Circuit.

EEOC Could Not Rely on Disparate Impact

Although the EEOC confirmed that it was proceeding only on a disparate treatment theory, the appellate court found the EEOC relied on arguments that conflated the distinct Title VII theories of disparate treatment and disparate impact. Importantly, previous courts have held that the two theories are not interchangeable and that they must be carefully distinguished.

To prevail on a disparate treatment claim, a Title VII plaintiff must demonstrate that an employer intentionally discriminated against her on the basis of a protected characteristic. On the other hand, a disparate impact claim targets an employment practice that has an actual, though not necessarily deliberate, adverse impact on protected groups.

Because the EEOC brought only a disparate treatment claim, the Eleventh Circuit found it would be improper to consider the EEOC’s arguments on the racial impact of a dreadlock ban and the disproportionate effect it would have on black workers and job applicants.

What is Race, According to Eleventh Circuit?

While the Eleventh Circuit rejected the EEOC’s attempts to use disparate impact observations to prove a complaint pled on a disparate treatment theory, the Court continued its analysis to determine if the EEOC’s complaint brought a plausible disparate treatment claim.

The Court noted the EEOC’s amended complaint contained legal conclusions about the concept of race. The EEOC’s proposed amended complaint asserted that race “is a social construct and has no biological definition” and that “the concept of race is not limited to or defined by immutable characteristics.” The EEOC also maintained that if “individual expression is tied to a protected trait, such as race, discrimination based on such expression is a violation of the law.”

The Eleventh Circuit admitted that in today’s world, it might be true that race is a social construct and not subject to biological truth. However, even if that was the case, the Court found it necessary to continue to follow rules of jurisprudence to determine the meaning of “race” and evaluate the viability of the EEOC’s lawsuit.

First, the Court found little support for the notion that “race” meant “individual expression … tied to a protected race” when Title VII was enacted in 1964. It found most dictionaries from the 1960s tied “race” to common physical characteristics or traits existing through ancestry, descent, or heredity. Other dictionary, legislative, and case law sources, the Court said, also show that this notion of race being one of common physical characteristics persisted decades after the 1960s.

Next, the Eleventh Circuit examined circuit precedent to determine if the EEOC’s legal view of race had any merit. According to the Eleventh Circuit, binding case law barred employers from making distinctions on immutable characteristics. Thus, employers were allowed to require men to wear short hair and bilingual Hispanics to speak English, because Title VII focuses on matters that are beyond the individual’s power to alter.

Finally, the Court found the EEOC, as the agency enforcing Title VII, was not entitled to deference. The agency’s position directly contradicted the position the EEOC took less than a decade ago, when it held a grooming policy interpreted to prohibit hairstyles, including dreadlocks, lies “outside the scope of federal employment discrimination statutes,” even when the prohibition targets “hairstyles generally associated with a particular race.”

Because the EEOC did not allege in its complaint or proposed amended complaint that dreadlocks themselves were an immutable characteristic of African-Americans, the Court affirmed the decision of the district court and dismissed the EEOC’s amended complaint.

Implications

While the Eleventh Circuit rejected the EEOC’s “cultural expression” theory of discrimination, employers should keep in mind that the EEOC is not likely to abandon its theory and employers may not always be successful in distinguishing among characteristics employees can alter.

Significant points in Catastrophe Management Services include:

  • The Eleventh Circuit acknowledged that religion is an exception to the immutable characteristic requirement. Employers are required to accommodate the sincerely held religious beliefs of employees and applicants and to not discriminate against an employee’s religion even though religion is a matter of choice. (See our article, Supreme Court Refines Religious Discrimination Requirements under Title VII to Focus on Employer Motive.)
  • The Eleventh Circuit contemplated that the disparate impact theory may be available to challenge an employer’s distinctions based on cultural differences between races.
  • The Eleventh Circuit reviewed academic literature arguing for a change in the legal notion of race. The Court did not find the arguments frivolous, but rather said a change in the meaning of race was best left to Congress.
  • The ruling demonstrates the complexity of grooming policies and the difficulty in drawing lines between immutable and mutable characteristics. For example, the Eleventh Circuit pointed out that the Seventh Circuit has recognized a claim for racial discrimination stemming from an African-American employee’s claim that she was denied a promotion based on her “natural” Afro hairstyle.
  • Although the Eleventh Circuit cited binding precedent allowing employers to mandate separate grooming standards for men and women, that ruling was issued before the Supreme Court’s Price Waterhouse v. Hopkins (1989). In Price Waterhouse, the Supreme Court found sex stereotyping unlawful. There appears to be a trend to apply Price Waterhouse such that employers may not mandate one dress style for women and another for men. The court suggested that the EEOC should have engaged with an employer in good faith to eradicate sex-specific grooming policies through a unisex code, rather than to reinforce them by upholding the sex-specific dress codes. (See our article, Court Dismisses on Religious Freedom Grounds EEOC’s Title VII Suit on Behalf of Fired Transgender Employee.)
  • The EEOC’s “cultural expression” theory as applied to dreadlocks parallels its theories underlying its position that “English Only” rules are valid only if the employer can show the rules are job-related and consistent with business necessity. (See EEOC Proposed Enforcement Guidance on National Origin Discrimination.) While the Fifth, Eleventh, and other appellate courts have not accepted similar arguments against “English Only” rules, more recently, some courts have permitted English Only challenges despite the argument that for bilingual employees, the decision to speak another language is a choice and not immutable.

Diversity in the American workforce continues and some employers have adjusted their views on what constitutes acceptable business attire. Workplace expression, whether it be manner of dress or communication, can create an intersection involving business expectations, race, national origin, culture, gender, gender identity, sexual orientation, religion, and employee morale.