An employer’s decision to rescind an African American applicant’s job offer after she refused to comply with a race-neutral grooming policy that prohibited her from wearing her hair in dreadlocks did not constitute race discrimination in violation of Title VII, ruled the 11th Circuit. Notably, the court declined to adopt the EEOC’s expansive view that Title VII’s protections extend to practices that are “historically, physiologically and culturally associated with … race” and held that “Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices.”
In EEOC v. Catastrophe Management Solutions, No. 14-13482 (11th Cir. Sept. 15, 2016), the employer’s grooming policy stated that “[a]ll 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 … [H]airstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.” Based on this policy, the company declined to hire the job applicant after she refused to change her hairstyle.
The EEOC sued on the job applicant’s behalf under Title VII and the district court dismissed the complaint. On appeal, the EEOC argued that race is a social construct that cannot be clearly biologically defined and is not limited to immutable physical characteristics. The agency further argued that the concept of race encompasses cultural characteristics, including grooming practices, and that dreadlocks are a racial trait regardless of the fact that some non-black persons have a hair texture that may result in the formation of dreadlocks.
The 11th Circuit rejected the claim that Title VII covers “individual expression … tied to a protected race” and held that a claim for intentional racial discrimination must allege disparate treatment based on immutable characteristics. While acknowledging “[i]t may be true that today ‘race’ is recognized as a ‘social construct’ … rather than an absolute biological truth,” the court determined that neither Title VII’s drafters nor any court applying the statute suggested the term should be interpreted as broadly as the EEOC urged. The court explained that just as an English language-only rule was insufficient, by itself, to support a claim for national origin discrimination by an employee who spoke both English and Spanish, in race discrimination cases “there is no disparate impact if the rule is one that the affected employee can readily observe and nonobservance is a matter of individual preference.”
While distinctions between immutable characteristics of race, such as black hair texture, and mutable characteristics, such as black hairstyle, may sometimes be difficult to draw, they nevertheless provide a workable rationale for employers to follow when drafting race-neutral personnel policies. The key, as always, is ensuring that such policies are sufficiently clear and specific to prevent managers from applying them in ways that can later be characterized as discriminatory under Title VII and similar antidiscrimination laws.