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EEOC can’t get en banc review of its failed challenge to employer’s no-dreadlock policy

By Lisa Milam-Perez, J.D.

A divided Eleventh Circuit has rejected the EEOC’s petition for en banc rehearing of a 2016 panel decision which held an employer’s grooming policy that barred employees from wearing dreadlocks did not amount to race discrimination. Judge Martin dissented from the decision to let the panel ruling stand; Judge Jordan, who authored the underlying decision, responded with a concurrence in support of the vote to deny rehearing. In a case that turned on questions about the very notion of race and what defines it, Judge Martin noted the irony inherent in “this debate between two appeals court judges, neither of us African American, about what is an immutable characteristic of African American hair…” (EEOC v. Catastrophe Management Solutions, December 5, 2017, per curiam).

Panel decision. In a September 2016 opinion, an Eleventh Circuit panel, affirming the decision of the district court below, held the EEOC did not plausibly allege intentional race discrimination on behalf of an African-American job applicant whose job offer was rescinded because she wore dreadlocks. Dreadlocks, according to the EEOC, are “a manner of wearing hair that is common for black people and suitable for black hair texture.” Significantly, the EEOC did not allege that dreadlocks are an immutable characteristic of black persons; rather, the agency asserted that black persons choose to wear dreadlocks because the hairstyle is historically, physiologically, and culturally associated with their race.

The case compelled the Eleventh Circuit to consider, at least in part, what encompasses “race” within the meaning of Title VII. The EEOC posited that race “is a social construct and has no biological definition,” and that it was “not limited to or defined by immutable physical characteristics.” The agency pointed to its own compliance manual, which provides that the “concept of race encompasses cultural characteristics related to race or ethnicity,” including grooming practices such as the wearing of dreadlocks which, despite being worn by some non-black persons, were nonetheless a racial characteristic, akin to skin color.

However, the panel reasoned that as a matter of language and usage, “race” referred to common physical characteristics shared by a group of people and transmitted by their ancestors over time. Looking to the then-Fifth Circuit’s 1975 precedent in Willingham v. Macon Tel. Publ’g Co., it observed that Title VII protects individuals with respect to their immutable characteristics but not their cultural practices. And the fact that dreadlocks are a “natural outgrowth” of the texture of black hair does not make them an immutable characteristic of race. As such, the EEOC failed to state a plausible disparate treatment claim based on the employer revoking the black applicant’s employment offer in accordance with its race-neutral grooming policy.

Dissent from denial of rehearing. Judge Martin, joined by Judges Rosenbaum and Pryor, dissented from the decision not to rehear the case en banc, concluding the EEOC’s allegations were sufficient to state a disparate treatment claim of race discrimination and decrying “the startling nature of the precedent” created by the panel opinion below. The mutable/immutable distinction set forth in Willingham was invalidated by the Supreme Court in Price Waterhouse v. Hopkins, which made clear that Title VII’s prohibition against discrimination based on a protected class is not limited to protecting only those characteristics of the class that may be deemed “immutable.” In Martin’s view, “[t]he lesson of Price Waterhouse is clear. An employment decision based on a stereotype associated with the employee’s protected class may be disparate treatment under Title VII even when the stereotyped trait is not an ‘immutable’ biological characteristic of the employee.” Willingham was no longer good law and was wrongly invoked by the panel, Martin argued. Worse still, by doing so in broad terms—not limiting its reach to cases involving grooming policies—the decision “takes our entire Title VII disparate-treatment jurisprudence down a misguided path,” leaving gender nonconformity claims in question, for example.

The panel had in fact expanded the immutable-trait requirement; before the opinion here, the Eleventh Circuit had never applied it to a race-based disparate treatment claim. And with good reason, according to Martin, because “it has no place in the race-discrimination context.” The doctrine wrongly presumes there are “immutable, or naturally-occurring physical differences between racial groups,” but the distinction between an “immutable” racial trait and a “mutable” one is illusory. By way of example, the panel drew a distinction between dreadlocks and afros, suggesting that the former was a “mutable choice,” a mere hairstyle preference and thus not protected, while the latter was an outgrowth of the “immutable characteristic” of “black hair texture” and is therefore protected. “This distinction is nonsense,” according to the dissent; “like any hair style, both can be altered.”

To the dissent, the bottom line is this: “When an aspect of a person’s appearance marks her as a member of a protected class and her employer then cites that racial marker as the reason for taking action against her, the employee’s race probably had something to do with it. Whether that racialized aspect of her appearance is ‘immutable’ such as skin color or ‘mutable’ such as hair is beside the point. Either way, the employer’s action based on a racial identifier is an action based on the employee’s race.”

Concurrence. Defending the panel decision and the Eleventh Circuit’s vote to uphold it, Judge Jordan responded that the EEOC’s lawsuit had attempted “to expand the definition of ‘race’—a term undefined in Title VII—to include anything purportedly associated with the culture of a protected group.” The EEOC had espoused “a completely different theory of discrimination” here, asserting that Title VII protects dreadlocks “because they are culturally and physiologically associated with individuals of African descent.” But “merely prohibiting a mutable characteristic does not, as Judge Martin and the EEOC argue, constitute discrimination.”

As for the dissent, Judge Martin overstated the Supreme Court’s holding in Price Waterhouse. “In my view, Price Waterhouse did not elevate mutable features, independent of a protected category, to protected status.” Here, the employer’s prohibition on dreadlocks was based on a race-neutral policy that applied equally to applicants and employees of all races. Unlike in Price Waterhouse, here the policy against the allegedly stereotypical characteristic (dreadlocks) “unmoored” from the protected category of race. This was a crucial distinction, Jordan said. And while the EEOC alleged that black individuals wear dreadlocks more often than persons of other racial groups, this assertion might be viable in the context of a disparate-impact claim, but the EEOC had not pursued a disparate impact theory.

As Judge Jordan saw it, the EEOC had pursued the case “in the hopes that we would do what neither it (through its rulemaking authority), nor Congress, nor any other court has done: update the meaning of race in Title VII to reflect its increasingly nebulous (and disputed) boundaries. But there is no legal or factual agreement on where those boundaries lie, and Judge Martin and the EEOC do not pretend otherwise.” The debate rages on as to whether race itself is a construct of biology, culture, or consensus—and who gets to make that call. “As far as I can tell, the position advocated by the EEOC could reduce the concept of race in Title VII to little more than subjective notions of cultural appropriation,” Jordan wrote. “Perhaps this view reflects the future of Title VII, but if so, Congress is the proper entity through which to effect such significant change.” But for now, Jordan concluded, discrimination based on stereotypes is merely circumstantial evidence of discrimination on the basis of a protected category, and protected categories and characteristics “must be immutable.”