No Disparate Treatment Discrimination When Employer with Race-Neutral Grooming Policy Refuses To Hire Black Applicant with Dreadlocks: Eleventh Circuit

Practical Law Legal Update w-003-5245 (Approx. 7 pages)

No Disparate Treatment Discrimination When Employer with Race-Neutral Grooming Policy Refuses To Hire Black Applicant with Dreadlocks: Eleventh Circuit

by Practical Law Labor & Employment

Background

Catastrophe Management Solutions (CMS) is a claims processing company in Alabama. The EEOC sued on behalf of Chastity Jones, a black job applicant whose offer of employment was rescinded by CMS in 2010, under its race-neutral grooming policy, when she refused to cut off her dreadlocks. The policy read as follows:

"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.... [H]airstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable[.]"

The EEOC alleged that CMS' conduct constituted discrimination on the basis of Jones' race in violation of Title VII. The district court:

Dismissed the complaint, concluding that:
- it did not plausibly allege intentional racial discrimination by CMS against Jones;
- "Title VII prohibits discrimination on the basis of immutable characteristics, such as race, color, or natural origin," and "[a] hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic"; and
- other courts had rejected the argument that "hairstyle can be a determinant of racial identity."
Denied the EEOC's motion for leave to amend and discard the immutable/mutable distinction for Title VII race discrimination claims, concluding that:
- the EEOC had already presented its more detailed allegations as legal arguments in support of the initial complaint, and those arguments had been rejected; and
- the proposed amended complaint would be futile.
(E.E.O.C. v. Catastrophe Mgmt. Sols., 11 F. Supp. 3d 1139, 1142–44 (S.D. Ala. 2014)).

The EEOC appealed, arguing that:

Dreadlocks:
- are a natural outgrowth of the immutable trait of black hair texture;
- are directly associated with the immutable trait of race; and
- can be a symbolic expression of racial pride.
Targeting dreadlocks as a basis for employment can be a form of racial stereotyping.

Outcome

The Eleventh Circuit affirmed the district court, holding that:

The EEOC conflated the distinct Title VII theories of disparate treatment and disparate impact.
Fifth Circuit precedent holds that Title VII prohibits discrimination based on immutable traits. The proposed amended complaint did not assert that dreadlocks are an immutable characteristic of race.
The EEOC's Compliance Manual guidance conflicts with the agency's position in an earlier administrative appeal. The EEOC has not offered any explanation for its change in course.
No court has accepted the EEOC's view of Title VII in a scenario like this one, and the allegations in the proposed amended complaint did not set out a plausible claim that CMS intentionally discriminated on the basis of race.

The Eleventh Circuit found that:

Despite confirming that it would proceed only on a disparate treatment claim, the EEOC conflated the two liability theories, making disparate impact arguments in support of its disparate treatment claim.
The holding in Young v. United Parcel Serv., Inc., is limited to the language in a specific provision of the Pregnancy Discrimination Act and is not automatically transferable to a disparate treatment case under Title VII involving allegations of intentional racial discrimination (135 S.Ct. 1338 (2015)). The EEOC's argument that Young supported its use of disparate impact arguments in this action therefore failed.
Neither Title VII nor EEOC regulation defines the term "race."
Fifth Circuit precedent provides that Title VII protects against discrimination based on immutable characteristics. For example:
- in Willingham v. Macon Tel. Publ'g Co., the Fifth Circuit held that "private employers are prohibited from using different hiring policies for men and women only when the distinctions used relate to immutable characteristics or legally protected rights" (507 F.2d 1084 (5th Cir. 1975)); and
- in Garcia v. Gloor, the Fifth Circuit held that "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" (618 F.2d 264 (5th Cir. 1980)).
As a general matter, Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices.
Courts have drawn a line between immutable and mutable characteristics of race. For example, black hair texture is an immutable characteristic and discrimination on that basis is prohibited by Title VII, whereas black hairstyle is a mutable choice and adverse action on that basis is not prohibited by Title VII.
The EEOC's proposed amended complaint did not allege that dreadlocks are an immutable characteristic of the black race. In fact, the complaint stated that black persons choose to wear dreadlocks because that hairstyle is historically, physiologically, and culturally associated with their race.
The EEOC Compliance Manual states that "Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person's name, cultural dress and grooming practices, or accent or manner of speech" (EEOC Compliance Manual, § 15-II, at 4 (2006)). However, in Thomas v. Chertoff, the EEOC concluded that a grooming policy interpreted to prohibit dreadlocks and similar hairstyles lay "outside the scope of federal employment discrimination statutes," even when the prohibition targets "hairstyles generally associated with a particular race" (, at *1 (E.E.O.C. Office of Federal Operations (Oct. 24, 2008))).
The EEOC has not provided a reasoned justification for changing course in the Compliance Manual, and failed to address Thomas in its reply brief. Therefore, its guidance is unhelpful in determining the scope of Title VII's prohibition of racial discrimination.
Every court to have considered the issue has rejected the argument that Title VII protects hairstyles culturally associated with race.
Defining "race" more broadly than existing precedent or eliminating the mutable/immutable trait distinction requires legislative intervention.

Practical Implications

This decision clarifies the important and sometimes fine distinction between immutable and mutable characteristics of race, and the effect of that distinction under Title VII. However, the court's decision is limited to the disparate treatment context, and employers should continue to consider the disparate impact theory of discrimination when implementing facially neutral employment policies.

UPDATE: On December 13, 2016, the US Court of Appeals for the Eleventh Circuit withdrew its opinion dated September 15, 2016, and issued a new opinion. The new opinion is almost the same as the first opinion, but includes an additional paragraph noting that:

The EEOC did address Thomas v. Chertoff in its reply brief. (In the first opinion, the court stated otherwise.)
The EEOC's argument on Thomas fails to justify its shift in the EEOC Compliance Manual because:
- the EEOC's attempt to characterize Thomas as a case about "hair length" and not "natural hair texture" or the "other racial characteristics" raised is this case is not a sound basis for distinguishing Thomas from this case; and
- in Thomas, the EEOC relied on Willingham and Rogers as support for the proposition that an employer prohibiting hairstyles typically associated with a particular race or ethnic group is outside the scope of Title VII since the prohibition does not discriminate based on immutable characteristics.
( (Dec. 13, 2016).)

No Disparate Treatment Discrimination When Employer with Race-Neutral Grooming Policy Refuses To Hire Black Applicant with Dreadlocks: Eleventh Circuit | Practical Law