Murray,JoeJoseph S. Murray IV

In the 50 years since Congress enacted Title VII, scientists, contemporary thinkers, and society in general have reassessed the concept of race. No longer do we view race solely in terms of biology (immutable characteristics). We now understand that race includes social context, culture, and life experiences (mutable characteristics). While society’s understanding of race has changed, Title VII’s original definition — or lack thereof — remains stuck in 1964. Whether a racial characteristic is mutable or immutable matters, as the Court of Appeals for the United States Court of Appeals for the 11th Circuit recently reminded the EEOC: Title VII only protects against discrimination based on immutable characteristics. EEOC v. Catastrophe Mgmt. Solutions, No. 14-13482, 2016 U.S. App. LEXIS 16918 (11th Cir. Sep. 15, 2016).

Chastity Jones is an African-American female with short dreadlocks. She applied to work for CMS as a customer service representative, a position that did not have contact with the public. Following an interview, CMS hired Jones along with several other applicants. After a group meeting regarding paperwork and lab tests, Jones met privately with a white CMS HR manager to discuss scheduling conflicts. During this meeting the HR manager told Jones that CMS’s race-neutral grooming policy prohibited dreadlocks and Jones would need to cut her hair. After Jones refused to cut her hair, the HR manager informed Jones that CMS could not hire her. Jones returned the CMS paperwork and left.

Jones then filed a complaint with the EEOC, which in turn filed suit against CMS under the disparate treatment theory of Title VII. In its amended complaint, the EEOC asserted that the “prohibition of dreadlocks in the workplace constitutes race discrimination because dreadlocks are a manner of wearing the hair that is physiologically and culturally associated with people of African descent.” Based on this assertion, the EEOC alleged that CMS discriminated against Jones by banning the wearing of dreadlocks. The district court dismissed the EEOC’s suit under Rule 12(b)(6) and the 11th Circuit upheld the dismissal.

The 11th Circuit initially noted that “race” is not defined in Title VII and the EEOC had failed to issue any regulations defining “race.” Since “race” does not have a definition under Title VII, the 11th Circuit first turned to statutory interpretation to find that at the time Title VII was passed race most likely meant the “common physical characteristics shared by a group of people and transmitted by their ancestors over time,” and not individual expressions of members of a particular race. The court then reviewed its own binding precedent and decisions from other courts that consistently found that Title VII protects individuals from discrimination based on immutable characteristics only. Based on its statutory interpretation and the review of case law, the 11th Circuit found that Title VII does not protect an individual from discrimination based on mutable characteristics, such as wearing dreadlocks, and upheld the district court’s dismissal.

The 11th Circuit’s ruling is consistent with virtually every other court that has ruled on the issue—disparate treatment claims must be based on immutable characteristics. See, e.g., Cooper v. Am. Airlines, 149 F.3d 1167, 1998 U.S. App. LEXIS 10426 (4th Cir. 1998) (unpublished). The 4th Circuit faced virtually identical facts and came to the same conclusion in Cooper: An African-American flight attendant began wearing her hair in small braids. After being informed that the braids violated American Airlines’ grooming policy, the flight attendant removed the braids and filed suit. The 4th Circuit upheld the district court’s dismissal of all claims under 12(b)(6) since the grooming policy did not constitute an unlawful employment practice.

Interestingly, the 11th Circuit spent part of the opinion discussing the EEOC’s attempt to use evidence of disparate impact to support the claim of disparate treatment (the EEOC only pled a disparate treatment claim). During that discussion, the 11th Circuit appeared to hint that attacking a race-neutral grooming policy under a disparate impact theory may have been more successful. Despite the 11th Circuit’s potential invitation to the EEOC to file a disparate impact case, the 11th Circuit’s own definition of “race” makes such a claim impossible. Even if a neutral policy disproportionally affects members of a protected class but the affect is due to a mutable characteristic, then there cannot be discrimination under Title VII. Numerous courts, including some cited by the 11th Circuit, have taken this position when dismissing, or upholding dismissal of, disparate impact claims based on mutable characteristics. See, e.g., Cooper, 149 F.3d 1167, 1998 U.S. App. LEXIS 10426; Rogers v. Am. Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1981); see also Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980) (upholding dismissal of Mexican-American plaintiff’s national origin disparate impact claim since plaintiff was fluently bilingual).

Ultimately, until Congress or the EEOC create a definition of race, courts will not invalidate facially neutral employment policies that ban or impair a person’s ability to display a mutable characteristic of a protected class.