An employer was in the crosshairs of a federal discrimination lawsuit after rescinding an African-American woman’s offer of employment because she wore her hair in dreadlocks and refused to change them. The employer prevailed before the U.S. Circuit Court of Appeals for the Eleventh Circuit, but businesses nonetheless should be cautious, says Nichole M. Mooney, a labor and employment attorney in Dean Mead’s Orlando office.
Mooney says the ruling that upheld a U.S. District Court’s dismissal of the claim could have gone the other way if the Equal Employment Opportunity Commission (EEOC) had based its argument on a different legal theory or brought the claim in a different circuit. Employers are on risky ground when they dictate grooming, dress or other rules that might be perceived as associated with a particular ethnic or other protected group.
Employer regarded dreadlocks as an “excessive hairstyle”
Catastrophe Management Solutions, a claims processing company in Mobile, Alabama, offered Chastity Jones a job in its call center following an in-person interview. Before starting the job, a human resources department employee told Jones the company could not hire her if she continued to wear her hair in dreadlocks. The decision was based on the company’s written policy that banned “excessive hairstyles” but did not specifically mention dreadlocks.
The EEOC sued on behalf of Jones, alleging that the policy constituted race discrimination because dreadlocks are physiologically and culturally associated with African-Americans. The trial court dismissed the complaint, finding that it did not plausibly allege racial discrimination, and refused to allow the EEOC to amend the complaint. The Eleventh Circuit agreed and affirmed the decision (“CMS I”). Equal Employment Opportunity Commission v. Catastrophe Management Solutions, 852 F. 3d 1018 (11th Cir. 2016). Almost exactly one year later, in a 13-page opinion, the Eleventh Circuit continued the discussion and denied the EEOC’s petition for rehearing en banc (before the full panel of 11 judges) (“CMS II”). Equal Employment Opportunity Commission v. Catastrophe Management Solutions, 876 F. 3d 1273 (11th Cir. 2017).
The lawsuit, in the words of the Eleventh Circuit decision, sought to expand the definition of race under federal law “to include anything purportedly associated with the culture of a protected group.” The judges noted that Title VII of the Civil Rights Act of 1964, which prohibits discrimination by employers, does not provide definitions of race, something that perhaps seemed obvious at the time but that has become more complex a half century later.
The opinions in CMS I and CMS II discussed at length whether dreadlocks are an “immutable” characteristic of African-Americans, because the court found that Title VII prevents discrimination based on immutable traits. In this case, banning something related to an immutable characteristic – a trait that a person cannot change – could state a claim for racial discrimination. If not immutable, the claim for discrimination would not stand. In CMS I, the court found that dreadlocks are a choice – a “cultural practice” – and as such are not an immutable characteristic of African-Americans. Because they could be changed, the CMS I court found that there could be no claim for discrimination.
Rehearing was requested. In CMS II, three members of the panel vigorously dissented from the denial of rehearing en banc. They argued that CMS I resurrected and expanded the immutable trait requirement, which it called an “invalid doctrine” to race-based claims that was not consistent with the court’s prior rulings. The dissent’s opinion reasoned that if a trait – immutable or mutable – is linked by stereotype to an ethnic group, then banning it is not race neutral any more than banning people with dark-colored skin would be.
The 11th Circuit rulings in CMS I and CMS II are binding in Florida, Alabama and Georgia, but both the majority and dissenting opinions may be persuasive in other similar cases across the U.S.
Mooney suggests employers should pay attention to the decision for several reasons:
Same claim with a different legal theory could have won
The Eleventh Circuit made clear that the EEOC brought the claim under a “disparate treatment” theory and specifically disclaimed a “disparate impact” theory. “Disparate treatment” requires the plaintiff to demonstrate that an employer intentionally discriminated on the basis of a protected characteristic; it focuses on the intent of an action. “Disparate impact” does not require proof of intent. It targets a practice that has an actual adverse impact on protected groups, even if not deliberate, and focuses on the consequences of an action.
The results may have been different if the EEOC had made a “disparate impact” argument. Under this legal theory, if an employer policy disproportionately affects one racial group, then it can be argued more forcefully that it is not race neutral. Had the EEOC relied on this theory, it might have withstood the motion to dismiss and moved to prove that dreadlocks are associated with African-Americans more than other groups. The EEOC has used the disparate impact argument, for example, to caution employers on how they review arrest records of applicants, because some minority groups are more likely to have arrest histories.
The EEOC has signaled a direction
“The EEOC has signaled that it intends to look more broadly at how it defines race and other protected groups,” says Mooney. She offers as an example an employer policy that mandates that employees speak English at work. “While there may be solid business or safety reasons for such a policy for work purposes during working time, prohibiting workers from speaking a language other than English at lunch or on break time, for example, could be viewed as discriminatory on the basis of ethnicity or national origin.”
“There is a shift in how we define race, and we now lean more toward cultural associations rather than birth alone,” says Mooney. Controversy over culture appropriation, though not a legal issue, shows how ethnic groups believe they “own” certain characteristics, such as dreadlocks or clothing styles. This ground is shifting constantly, and smart employers will be careful about drawing lines where they are not needed for identifiable business reasons.
Bottom line: Why do you need the policy?
Mooney says that employers are on safe ground banning things that clearly are not associated with the culture of a protected group. For example, some employers ban visible tattoos or rings placed anywhere other than the earlobes or fingers. Modesty codes generally are acceptable, too, she says – no bare midriffs, for example. Employers also can have dress codes, but Mooney cautions against vague requirements. Khakis and white shirts for everyone – that won’t be a problem.
“The question for employers is, why do you have the policy?” says Mooney. “In the case of the dreadlocks, is it based on length and could be caught in machinery? If so, does it apply to all styles of long hair? Or does it just offend the employer’s own personal sensibilities on proper hair style?” If the latter, it’s far safer to stay away from any policy, whether it’s grooming, clothing, head scarves or other appearance traits that might be associated with a protected ethnic or religious group, Mooney says.
“Can you show a business necessity for the policy?” asks Mooney. “That should be the focus and can be the deciding factor in such policies, and ultimately in related claims.”