Introduction
Imagine this. You are a rising second-year law student preparing for on-campus interview season. You are ecstatic because you were able to secure an interview with your top choice law firm. You worked hard for this opportunity, and you know that you are qualified. You have the grades and ambition to succeed. Then, one of your classmates nonchalantly asks, “Are you going to straighten your hair for the interview?” It may seem like an uncomplicated question, yet, for many, this question presents a quandary. As an Afro-Latinx1 woman with naturally curly hair, I know all too well the conundrum this question creates and have too many times found myself in an internalized struggle when it comes to my hair and professional settings. On the one hand, I have a deep love for my hair and have allowed it to become a defining personality trait of mine, often letting it guide me into conversations. On the other hand, I have felt the pressures to conform to society’s Eurocentric standards, often finding myself using harsh chemicals and extreme heat to alter the texture of my natural hair.2
The Black community has often relied on their hair as a source of artistry and self-expression.3 Nonetheless, European aesthetics continue to permeate the Black community in various ways, including “cultural expressions categorizing hair as ‘good’ or ‘bad’ based on its [natural] texture.”4 This undoubtably has shaped the way in which members of the Black community have made their hair and beauty choices.5 Despite hair’s cultural and historical significance, there is currently no federal remedy available to those who have faced discrimination in the workplace based on their natural hair.6
History shows that hair has been an important and defining characteristic of African culture since ancient times.7 Hairdressers held a high status in traditional African cultures and African hairstyles were often used to signify a person’s birthplace, tribal membership, marital status, age, occupation, and socioeconomic status.8 In fact, men and women in traditional African cultures often used their hair as a means of raising awareness of specific social connotations, such as the women of Senegal’s Wolof people who would shave their heads a certain way until they were of marrying age and Wolof men who would braid their hair a particular way to demonstrate their preparation for war.9 Hairdressing was done daily and involved a process of cleansing, combing, and styling into braids, twists, wraps, curls, and other styles, often including decorative accessories.10 It was expected that both men and women would groom their hair, as “unkempt hair was a sign of mourning, illness or antisocial behavior.”11 The ornamentation of both head and hair was crucial to African society, “especially in West Africa, where most [B]lacks in America have their origins.”12
In the 1400s, Europeans arrived in Africa and began kidnapping Africans for their labor.13 At first, the Westerners admired the elaborate hairstyles worn by African men and women.14 But soon after, slaveholders began shaving the captured individuals’ heads, in what would be the start of eradicating their self-identity and culture.15 Indeed, many whites held the belief that Blacks’ social, economic, and political inferiority as enslaved individuals was justified by their physical appearance.16 During this era, cities like New Orleans enacted laws that required Black Creole women who displayed their hair in natural styles to wear a tignon scarf over their hair to signify that they were members of the slave class, regardless of whether they were free or enslaved.17 These circumstances often resulted in enslaved individuals, especially those in close contact with whites, conforming to and adopting Eurocentric beauty standards.18
In the nineteenth century, the process of importing enslaved individuals came to an end in the United States, resulting in an increase in the market value of enslaved individuals.19 As a financially influenced reprieve, enslaved individuals were no longer forced to labor on Sundays.20 Hoping to capture the essence of their beloved historical African hairstyles, women took this opportunity to style their hair.21 These women were able to leave their hair uncovered for church services on Sundays, but kept it wrapped Monday through Saturday.22
America’s love affair with hair has been a tangled one. The concept of “good hair” arose in the years leading up to the abolition of slavery.23 “‘Good hair’ is considered to be hair that is wavy or straight in texture [and] soft to the touch,” requiring minimal use of products to be embraced.24 Indeed, this notion of “good hair” creates a pervasive cultural message that idealizes a particular perception of hair that is perpetuated by the sale, distribution, and promotion of treatments and products that achieve what is considered to be “good hair.”25
Despite this “good hair” standard, the last decade has seen a rise in the “natural hair movement,” where the Black community has chosen to consciously reject dominating Eurocentric beauty standards and celebrate their natural hair.26 As such, the market value of relaxers—”products that chemically straighten textured hair”—have fallen thirty-four percent since 2009.27 The choices that the Black community, and specifically Black women, are making to wear their hair naturally is challenging the “traditional norms” of what society considers to be “appropriate,” “attractive,” and—most importantly for purposes of this Note—”professional.”28 However, even with this rightful confidence, there is still evidence that society has not yet come to accept the rise of the natural hair movement.
In 2016, the Perception Institute conducted the “Good Hair” Study to examine explicit and implicit attitudes toward Black women’s hair.29 This study included 4,163 participants: a national sample of 3,475 men and women and a sample of 688 women from an online natural hair community.30 The study included the “Good Hair” Survey and a Hair Implicit Association Test (IAT).31 The “Good Hair” Survey evaluated women’s explicit attitudes toward Black women’s hair, hair anxiety, and experiences related to their own hair, and the IAT assessed implicit attitudes toward Black women’s natural hair.32 The objective of this study “was to determine the risk of discrimination against [B]lack women who wear their hair naturally.”33 This study found that, “[o]n average, white women show explicit bias toward [B]lack women’s textured hair[,] . . . rat[ing] it as ‘less beautiful, less sexy/attractive, and less professional than smooth hair.’”34 Further, the study concluded that “Black women perceive a level of social stigma against textured hair,” and this perception is often confirmed “by white women’s devaluation of natural hairstyles.”35
In the professional context, the “Good Hair” Study found that “[B]lack women show a preference for smooth hairstyles,” suggesting that these styles “are considered more acceptable than textured hairstyles in professional [environments].”36
Furthering the notion advanced in the “Good Hair” Study, it is evident that our predominantly Eurocentric society has not accepted many of the Afrocentric practices that mold Black culture, especially as they relate to professional environments. A 2019 study conducted by the American personal care company, Dove, found that Black women’s hair is policed more in the workplace than their non-Black female counterparts’ hair, thereby highlighting how workplace bias and corporate grooming policies unfairly impact Black women.37 The study surveyed 2,000 women, approximately 1,000 of whom were Black and 1,000 of whom identified as non-Black.38 The women, ages twenty-five to sixty-four, were all employed full-time throughout the United States and either worked in an office or field (sales) setting, or had worked in a corporate office in the past six months.39 The study revealed that Black women are thirty percent more likely than their non-Black counterparts to be made aware of a formal workplace appearance policy, and that Black women are one and a half times more likely to be sent home from the workplace because of their hair.40 Moreover, a Black woman’s hair is roughly three and a half times more likely to be perceived as unprofessional, and a Black woman is eighty percent more likely than her non-Black counterparts to change her natural hair to meet social norms or expectations at work.41
Nevertheless, despite the evidence highlighting the limpid effects hair discrimination has on professional environments, there is currently no federal legal remedy available to individuals who have been subjected to employment discrimination based on their natural hair.42 While some states and localities have enacted legislation to combat this, there are still many places where an employee can be disciplined, or even fired, if they refuse to conform to an employer’s grooming policies.43
This Note examines hair discrimination in the workplace and how Title VII of the Civil Rights Act of 1964 (Title VII) does not protect plaintiffs alleging that they were subjected to employment discrimination because of their natural hair. Recognizing a need for clear remedies on a federal level, I propose not only that Title VII be amended to recognize a claim for hair discrimination, but further that such claims be extended beyond that of race, and opened to protected classes such as national origin and religion.44 Various states have adopted legislation that goes beyond Title VII to forbid racial discrimination on race-based characteristics, explicitly including hair.45 But it is essential that a clear, consistent, and enforceable legal standard be provided at the federal level because, as is made clear in the Civil Rights Act of 1964, the federal government must play a key role in enforcing federal civil rights laws in a way that ensures equal educational, employment, and other opportunities of all individuals, regardless of their race, national origin, or religion.46
Part I of this Note provides background regarding Title VII, the Equal Employment Opportunity Commission (EEOC), and discrimination in the workplace. Part II analyzes how courts address hair discrimination claims, and how hair discrimination intersects with protected characteristics beyond race. Part III looks toward the future of banning hair discrimination on the federal level and provides recommendations as to how a federal amendment to Title VII can cure the issues raised in previous Sections. Finally, Part III explains how courts and employers can contribute to fulfilling the intent of Title VII as it relates to hair discrimination in the workplace.
I. Background
A. Title VII, the EEOC, and Discrimination in the Workplace
On July 2, 1964, before an audience of legislators and civil rights activists, President Lyndon B. Johnson signed the Civil Rights Act of 1964 into law.47 Considered to be the most sweeping civil rights legislation since Reconstruction,48 President Johnson remarked that this Act would “eliminate the last vestiges of injustice in our beloved country.”49 Title VII prohibits employment discrimination based on “race, color, religion, sex, or national origin.”50 Title VII applies to private and public employers,51 labor organizations,52 and employment agencies.53 The purpose of Title VII is nothing less than “the elimination of discrimination in the workplace.”54
Congress drafted Title VII with the intention of allowing the broadest possible definition of discrimination.55 Despite the many instances where Title VII has been used to cure unlawful discrimination, “courts have yet to fulfill the statute’s mandate.”56 Despite the Supreme Court holding that Title VII must be interpreted as broadly as possible to give effect to its remedial purposes, courts have regularly contradicted the plain language of Title VII.57 This contradiction is established by courts declaring certain employer policies nondiscriminatory, notwithstanding the fact that these policies incite glaring implications as they relate to race, sex, and national origin.58 The legislative history of Title VII “encourages the courts to evolve their own broad definition proscribing all employment conditions based upon the statute’s” protected classes.59
In addition to barring discrimination, Title VII created the EEOC, a federal agency tasked with enforcing the majority of federal laws that make it illegal to discriminate against a job applicant or employee.60 Congress tasked the EEOC with the duties of investigating any claims of discrimination against employers and bringing suits against employers when necessary.61 Further, the EEOC regularly issues guidance on all issues of discrimination in the workplace.62 Although EEOC guidance is not legally binding, courts have regularly instructed employers to look at such guidance to ensure compliance with Title VII.63 The EEOC’s interpretation of Title VII is entitled to great deference by the courts.64
In 1989, the EEOC issued a document that included guidance on grooming standards in the workplace.65 Seeking to clarify its policy and position on cases that raise a grooming- or appearance-related issue as a basis for discrimination under Title VII, the guidance states that appearance claims may raise viable race or national origin disparate treatment claims.66 Although this guidance was issued primarily in response to differential grooming standards applied between genders, the EEOC made clear that it relates to race or national origin.
In 2006, the EEOC issued an updated compliance manual that included revised guidance for race and color discrimination in the workplace.67 When discussing hair, the manual stated that employers should maintain neutral rules.68 The EEOC particularly stated that these rules must be applied evenhandedly, and that employers must respect racial differences in hair textures.69 The guidance explicitly stated that employers may not prevent Black women “from wearing their hair in a natural, unpermed ‘[A]fro’ style.”70
Courts have frequently refused to provide the EEOC guidance the deference required to afford relief for plaintiffs asserting hair discrimination claims.71 Courts have refused to rely significantly on the EEOC’s compliance manual, citing that it is either contrary to case law or inconsistent in stating the EEOC’s positions.72 This refusal by courts proves to be problematic because it offers little remedy for plaintiffs who assert claims of hair discrimination. Furthermore, as a practical matter, this refusal neglects how stereotypes rooted in race can have a disparate impact on Black employees.73
B. Disparate Treatment v. Disparate Impact
Title VII prohibits both “disparate treatment” and “disparate impact” discrimination.74 Disparate treatment is intentional discrimination based on race, color, religion, sex, or national origin.75 An example of disparate treatment would be requiring reading ability tests for Black employees, but not requiring the same test for their white counterparts.76 For disparate treatment claims, the key question for courts to consider is whether a person was treated differently because of their race, color, religion, sex, or national origin.77 On its face, the plain language of Title VII prohibits employers from engaging in the disparate treatment of their employees.78
The Supreme Court was faced with the question of whether Title VII prohibits facially neutral policies and practices that, regardless of intent, have an adverse impact on the basis of a protected trait.79 In Griggs v. Duke Power Co., the Court ruled in the affirmative and found that requirements or policies may violate the law if they have a disparate impact on a protected class of individuals covered under Title VII.80 Disparate impact discrimination “prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin, where the tests or selection procedures are not ‘job related and consistent with business necessity.’”81 Disparate impact claims on the basis of race do not require the plaintiff to demonstrate an intentional action, but rather require the plaintiff to prove that the alleged discriminatory policy or practice has a statistically significant impact on a protected class.82 “[T]he necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.”83
II. Analysis
A. How Courts Have Addressed Hair Discrimination in the Workplace
Perhaps the most renowned case involving hair discrimination is Rogers v. American Airlines, Inc. in 1981.84 Rogers, a Black woman, was employed by American Airlines (American) as an airport operations agent.85 In her role, she had extensive passenger contact, which included “greeting passengers, issuing boarding passes, and checking luggage.”86 Rogers claimed that American’s grooming policy, which prohibited her from wearing her hair in a cornrow style, intruded on her rights and discriminated against her on the basis of race, in violation of Title VII.87 Rogers asserted that the cornrow style of hair was one that was especially significant to Black women.88
The court acknowledged that the hair style is one that “has been and continues to be part of the cultural and historical essence of Black American women.”89 Nonetheless, the court found in favor of American, stating that the grooming policy was not discriminatory because the policy applied equally to members of all races and because Rogers did not allege that the cornrow hair style is worn exclusively or predominantly by Black people.90 In fact, the court seemingly accepted American’s contention that Rogers first appeared at work with the hairstyle “after the style had been popularized by a white actress in the film ‘10.’”91 The court indicated that an employer’s ban on hair styled as an “Afro/bush” would implicate the policies underlying the prohibition of discrimination because an Afro/bush hairstyle is an “immutable characteristic.”92 However, the court refused to extend the same analysis to Rogers’s cornrow hairstyle and provided that “[a]n all-braided hair style is an ‘easily changed characteristic,’ and, even if socioculturally associated with a particular race or nationality, is not an impermissible basis for distinctions in the application of employment practices by an employer.”93 Ultimately, the court found that a trait or style can have no cultural importance unless a plaintiff can show (1) that the trait is exclusive to the specified culture and (2) that nothing but that specified culture influenced their decision to adopt that particular style.94
The “disturbing crux” of Rogers is that it shows how “cultural reflections of [race and] national origin are weakly protected under Title VII.”95 The court’s holding in Rogers essentially allows an employer to create any policy or maintain any practice, even those that do not fulfill a business necessity, that restrict or hinder an employee’s cultural identity as long as this policy or practice is not associated with an immutable characteristic.96 The court’s application of the mutability analysis to aspects of cultural identity, as demonstrated in Rogers, is erroneous under Title VII’s expansive definition of discrimination.97 What’s more is that the decision in Rogers establishes a precedent that dramatically limits the freedoms Black employees have in the workplace, as it relates to their hair. Essentially, the Rogers decision restricts Black women to wearing their hair in a natural Afro or “bush” style and illustrates that employers are free to set policies against allowing employees to wear their hair in styles such as braids, cornrows, dreadlocks, bantu knots, and others.98 The court opined that an employer is free to set grooming policies that restrict these hairstyles because these hairstyles are mutable, meaning they are easily changed characteristics.99
However, a distinctive issue in the court’s analysis is its flawed interpretation of Title VII as solely concerned with immutable characteristics.100 Congress intended that Title VII be given the broadest interpretation possible;101 however, when drafting Title VII, Congress selected the terms “race, color, sex . . . [and] national origin”102 because they most accurately fulfill and describe those factors that would no longer constitute legitimate employment considerations.103 But, that is not to say that courts are without the ability to expand the notions of what is typical of those protected classes. Title VII is concerned with preserving the dignity and individuality of employees,104 and Title VII’s purpose is thwarted where, as in Rogers, an entire classification of discrimination is defined as falling outside of its purview.105 Indeed, there is nothing to suggest that “discrimination based on mutable characteristics interferes to a lesser degree than does immutable characteristic discrimination.”106
In 2016, plaintiff Chastity Jones’s claims met the same fate as Rogers’s claims.107 In EEOC v. Catastrophe Management Solutions, Jones applied to be a customer service representative at Catastrophe Management Solutions (CMS).108 As a customer service representative, Jones would have no in-person contact with customers; rather, she would speak with them over the phone from a large call center.109 Jones was selected for an in-person interview, and a few days later, she appeared at CMS dressed in a business suit with her hair styled in short dreadlocks.110 At the conclusion of the interview, Jones was offered the position.111 Subsequently, she met with CMS’s human resources manager, Jeannie Wilson, who—noticing that Jones’ hair was in dreadlocks—advised Jones that “CMS could not hire her ‘with the dreadlocks.’”112 When Jones asked why her dreadlocks would be a problem, Wilson stated that “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about”—to which Jones responded that she would not cut her hair off.113 Ms. Wilson responded that CMS could no longer hire her.114 Although CMS’s grooming policy did not specifically list dreadlocks as a prohibited hairstyle, the employer’s determination that they were unprofessional justified their decision to rescind Jones’s job offer.115
The EEOC filed suit on behalf of Jones alleging that CMS’s conduct constituted discrimination on the basis of Jones’s race in violation of Title VII.116 In the district court, the EEOC argued that (1) “hairstyle can be a determinant of racial identity”; (2) Rogers and cases that rely on Rogers were wrongly decided because “their construct of race is far too narrow” and because the definition of race failed to “encompass both physical and cultural characteristics, even when those characteristics are not unique to a particular group”; and (3) “the immutable versus mutable distinction should be rejected” and the law should provide protection for certain mutable traits.117
CMS moved to dismiss the complaint, asserting that the facts did not support a claim for intentional discrimination because a grooming policy based on a mutable characteristic such as hairstyle is not racially discriminatory.118 The district court dismissed the complaint for failure to state a claim.119 The court based its decision on the notion that “employers’ grooming policies are outside the purview of Title VII.”120 The court stated that Title VII prohibits discrimination on the basis of immutable characteristics such as race, sex, color, or national origin and that “[a] hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic.”121
The court went on to state that “defin[ing] race by non-unique cultural characteristics could lead to absurd results.”122 The court offered an example of an instance where a policy prohibiting dreadlocks would not apply to Black employees but would apply to their white counterparts, signaling that the court may have been concerned with policies having an adverse impact on white employees.123 However, this analysis employed a rather limited view of Title VII. If, as in the example employed by the court, an employer had a policy allowing a Black employee to wear their hair in dreadlocks, but denied that same right to a white employee, the white employee would have an actionable claim under Title VII.124
The EEOC appealed the district court’s decision to the Eleventh Circuit, which affirmed the dismissal, focusing its reasoning on the mutability of hairstyles.125 The court found that while the distinction between immutable and mutable characteristics may be difficult to distinguish, courts have drawn a line.126
The Eleventh Circuit further highlighted that the EEOC confirmed during oral argument that they were proceeding only on a disparate treatment theory and were not pursuing a disparate impact claim.127 The court noted that the two theories are not interchangeable, and that courts must be careful to distinguish between them.128 This is important because the court refused to consider whether CMS’s grooming policy had a disparate impact on Black applicants.129 Had the court considered this argument, the case could have potentially had a different outcome for Jones.
The court in Catastrophe Management highlights a more recent application of the immutability analysis and further demonstrates the erroneous and, perhaps outdated, nature of the concept. Courts’ understanding of race is grounded in long established beliefs that one’s racial identity is fixed and that one’s biological identity and/or race is determined by an immutable characteristic, such as their skin color.130 This concept is not at all extraordinary; many cling to the idea, whether consciously or unconsciously, that race is a static, unchangeable, biological construct and that all facets of one’s racial identity are those that one is born with and can be unchanged.131 The consequence of rulings such as those in Rogers and Catastrophe Management is that judges’ decisions treat issues involving racial identity as a monolith that remains involuntary and unchangeable.132
B. State and City Approaches Toward Banning Hair Discrimination
Courts have generally not considered discrimination based on hairstyles to be associated with race and, therefore, have not prohibited it under Title VII.133 Identifying that this issue is not one that has been addressed on the federal level, many states have chosen to enact their own legislation to tackle hair discrimination in employment and educational settings.134
As of May 2021, California,135 New York,136 Colorado,137 Maryland,138 New Jersey,139 Virginia,140 Washington,141 Connecticut,142 New Mexico,143 Delaware,144 and Nebraska145 are among the growing list of states that have passed or amended existing legislation prohibiting race-based hair discrimination. Each of these laws works to prevent biases and stereotypes related to race in education, employment, and other areas. These states have shown that they recognize a cognizable issue in the workplace and have offered a remediation to provide employees relief when they are subjected to employment discrimination based on their natural hair.146 The first two states to pass legislation, California, and New York, have provided the framework that other states have followed.
1. California
In July 2019, California became the first state to ban discrimination based on one’s natural hair.147 Senate Bill 188, also known as The CROWN Act,148 as it is similarly referred to in nearly every other jurisdiction that has adopted a similar law, seeks to expand the definition of “race” under California’s Fair Employment and Housing Act.149 This expansion includes protection for traits that are associated with race, such as hair texture, and natural or protective hairstyles, such as braids, dreadlocks, and twists.150 The Bill was authored and introduced by State Senator Holly Mitchell, who remarked that California’s strength is in its diversity.151
The California Legislature recognized the implications that decisions such as Rogers and Catastrophe Management have on the workforce and denounced similar decisions.152 The Bill further entitles an employee to “affirmative” or “prospective” relief including, among other things: reinstatement; awards of backpay; grants of tenure; promotions; and training of personnel.153
The California Bill is revolutionary because it tackles the issue of hair discrimination head on. It further recognizes the implications that hair discrimination can have on those who fall within the religious protected class by extending protections to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.154
2. New York
In February 2019, The New York City Commission on Human Rights released their Legal Enforcement Guidance on Race Discrimination on the Basis of Hair.155 Their guidelines point specifically to the rights of people to maintain their “natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”156 Soon after this guidance was released, Bill S6209A was signed into law and amended New York’s Human Rights Law and its Dignity for All Students Act to make clear that discrimination based on race includes hairstyles or traits associated with race.157 The Bill was first introduced by State Senator Jamaal T. Bailey and received overwhelming support from the New York State Legislature and Governor Andrew Cuomo.158
a. New York City
In 1991, the New York City Council passed the New York City Human Rights Law (NYCHRL), which sought to protect the rights of city residents and employees from discrimination.159 The NYCHRL is much more expansive than other civil rights laws enacted in other states and cities across the country.160 However, this has not always been the case. In 2005, New York City passed the Local Civil Rights Restoration Act of 2005, which sought to “clarify the scope” of the NYCHRL.161 The City Council observed that courts had construed the NYCHRL “too narrowly to ensure protection of the civil rights of all persons covered by the law.”162 Importantly, the Act clarified that the NYCHRL is “to be construed independently from similar or identical provisions of New York state or federal statutes.”163 The Act further elucidated that federal and state antidiscrimination laws were a mere “floor below which the [NYCHRL] cannot fall, rather than a ceiling above which the local law cannot rise.”164
Today, the New York City Human Rights Commission recognizes that many communities “have a religious or cultural connection with uncut hair, including Native Americans, Sikhs, Muslims, Jews, Nazirites, or Rastafarians, some of whom may also identify as Black, [and that] natural hair may include maintaining hair in an uncut or untrimmed state.”165 The Commission further states that grooming policies that generally target communities of color, religious minorities, or other communities protected under the NYCHRL are also unlawful.166
C. The Intersection of Hair Discrimination with Other Protected Classes Beyond Race
America is replete with many intersecting identities which elucidate our diverse ideals. Thus, many people often fall into more than one protected class. As the NYCHRL demonstrates, hair discrimination often can intersect with other protected classes beyond race, including national origin and religion.167
In January of 2017, Guy Usher—a resident of Nashville, a Black man, and practicing Rastafarian—applied and was interviewed for a part-time position with the grocery chain Publix Super Markets (Publix).168 Usher, who keeps his hair in dreadlocks as a part of his faith, was told at the end of his interview that he would need to cut his hair to work at Publix.169 When he advised the assistant manager that he could not cut his hair because of his religious beliefs and inquired as to whether he could wear his hair inside of a hat, the assistant manager informed him that the company could not accommodate his religious beliefs by allowing an exemption to their grooming policy, which “prohibit[s] male employees from wearing their hair longer than the collars of their shirts.”170 After receiving an offer of employment, Usher advised that he did not feel comfortable cutting his hair due to religious purposes.171 He was asked whether he wanted Publix to withdraw its offer of employment, to which Usher responded yes.172
The EEOC filed suit on behalf of Usher, asserting that Publix failed to provide a religious accommodation and that Usher was constructively discharged from his employment.173
On a motion for summary judgment, the court found that genuine issues of material fact existed as to whether Usher informed Publix’s customer service manager of a conflict between his religious beliefs and Publix’s grooming policy.174 Further, the court found that there existed genuine issues of material fact as to whether Usher’s belief that his dreadlocks conflicted with Publix’s grooming policy qualified as a “sincere religious belief[].”175 Therefore, the court denied Publix’s motion for summary judgment, allowing Usher’s failure-to-accommodate and failure-to-hire claims to survive.176 In July 2021, the parties reached a settlement.177 Without admitting liability, Publix agreed to pay $50,000 to Usher and conduct religious accommodation training to all human resources, management, and supervisory personnel at the location where Usher was allegedly discriminated against.178
The 2014 New York case Ibraheem v. Wackenhut Services, Inc. calls further attention to the intersection of hair discrimination and religion.179 The plaintiff here was a Black male and practicing Muslim, who wore a beard for religious reasons.180 This plaintiff was hired as a security guard, and the employer was aware that he kept a beard for religious reasons.181 The employer, however, maintained a policy that required all security personnel to remain clean-shaven, with exceptions afforded to those who wear beards for religious reasons.182 The employee obliged and submitted a letter affirming his religious status.183 For the first two years of his employment, he was not questioned about or asked to prove his religious status.184 Although the employer kept these letters in its offices, in June 2009, the employer informed the plaintiff that he should keep a copy of his proof of religion letter on his person while at work, although this was not a regular policy or practice of the employer.185 For the next week, the plaintiff was asked multiple times by supervisors to produce the letter.186
About two months after being asked to furnish the proof-of-religion letter, it was reported that the plaintiff was observed asleep on duty, which is a terminable offense under Wackenhut’s disciplinary rules.187 As such, the plaintiff was recommended for termination.188 The plaintiff contested the claim “that he was asleep on the job and demanded that videotape evidence be produced to prove that he had not been asleep.”189 The plaintiff then received a two-day suspension for being “inattentive to duty.”190
After the sleeping incident, the plaintiff alleged that he was subjected to various retaliatory actions, such as having limited access to a heated booth, despite his coworkers having access to one.191 In April 2010, the plaintiff was terminated for violating conditions of his employment, including the sleeping incident and for being away from his post twice on the day he was terminated.192
The plaintiff filed a charge of employment discrimination with the EEOC, alleging discrimination based on his religion.193 The EEOC issued the plaintiff a right-to-sue letter.194 The plaintiff sued the employer alleging employment discrimination based on age, race, and religion, along with a hostile-work-environment claim and various tort claims.195 The employer moved for summary judgment, which was granted in part and denied in part.196 In its holding, the court determined that the plaintiff’s claim for racial discrimination under Title VII was not reasonably related to the EEOC’s charge of religious discrimination.197 Essentially, because the plaintiff did not assert a claim of racial discrimination with the EEOC and because the basis of his complaint stemmed from his assertion that he was discriminated against because he wore a beard due to his Muslim faith, the court rejected the claim of racial discrimination and stated that the claim “would not ‘reasonably be expected to grow out of the [EEOC] charge [of religious discrimination].’”198 The court further reasoned that the plaintiff was able to demonstrate that he was subjected to adverse employment actions, but there remained a genuine issue of material fact as to whether the employer’s stated reason for terminating the plaintiff served as pretext for unlawful discrimination on the basis of religion.199 Thus, the plaintiff’s claims of religious discrimination survived, while his claim for race discrimination was not successful.200 The final outcome of Ibraheem has not yet been reported.
In EEOC v. Publix Super Markets, the court recognized that a policy prohibiting dreadlocks could give rise to religious discrimination.201 In Ibraheem, the plaintiff presented a claim which asserted that he was discriminated against based on his religion due to his beard.202 Although the plaintiff’s claim for racial discrimination failed, the holdings in Publix Super Markets and Ibraheem exhibit how hair can intersect with the protected class of religion.
III. Proposal
A. What’s the Right Approach? A Look Toward Banning Hair Discrimination on the Federal Level
1. Recommendations
As states continue to consider policies and legislation eradicating hair discrimination in the workplace, it is clear that society is moving in a positive direction. Nonetheless, there is a need for federal law that specifically forbids hair discrimination in the workplace. Adopting a federal amendment to Title VII would be the most effective way to fulfill its intent of eliminating workplace discrimination. Aside from a federal amendment, there is an overarching need for courts to expand their interpretation of immutability to include characteristics that may be tied to one’s race, religion, or national origin. Finally, employers can work within their organizations to guarantee that their policies do not disadvantage any class of employees.
a. H.R. 5309—CROWN Act of 2020
On December 5, 2019, Representative Cedric Richmond of Louisiana introduced H.R. 5309, also known as the CROWN Act of 2020 to the 116th Congress.203 On September 21, 2020, the Bill was passed by the House of Representatives and then went to the Senate for consideration.204 However, upon the completion of the 116th Congress in January 2021, the Senate had not yet voted on it, so, by rule, it would need to be reintroduced in the 117th Congress.205 Senator Cory Booker of New Jersey introduced a similar bill to the Senate on January 8, 2020, but that also was not voted on during the 116th Session.206
While the 116th Congress was unable to pass a version of the CROWN Act on a federal level, this issue remains at the forefront of current social justice issues.207 In March 2021, Senator Booker and Representative Bonnie Watson Coleman re-introduced the CROWN Act to the 117th Congress.208 On March 18, 2022, H.R. 2116 was passed by the House of Representatives and is now awaiting Senate consideration.209
b. Proposed Amendment to Title VII
The amendment to Title VII that is proposed here would revise the definitions of race, religion, and national origin to include protection of hair texture and style, and by extension would prohibit discrimination of an individual’s texture or style of hair based on one of those protected characteristics.
As Rogers, Catastrophe Management, Publix Super Markets, and Ibraheem demonstrate, hair discrimination intersects with other protected classes beyond that of race, including national origin and religion. H.R. 5309 provides a strong initial framework; however, the Bill does not suggest that hair discrimination claims can be asserted based on one’s religion or national origin. And, as made clear by this Note, hair discrimination connected to someone’s race, religion, or national origin should be illegal.
Like Maryland’s hair discrimination Bill, the amendment should define race as “includ[ing] certain traits associated with race, including hair texture and certain hairstyles.”210 This application should likewise be applied to national origin and religion, such that characteristics associated with these traits are protected. For example, coverage should apply to a Sikh man who wears a turban or a Hasidic Jewish man who wears a beard for religious reasons.
The proposed amendment should closely adopt much of the language provided in the New York City Human Rights Enforcement Guidance on Hair and take an expansive approach.211
Furthermore, drawing reference from the EEOC Compliance Manual, any proposed amendment should make clear that employers are within their rights to impose neutral hairstyle rules such as rules that say hair must be neat, clean, and well-shaven.212 Yet, like the EEOC Compliance Manual, any proposed policy should require that any neutral hairstyle rules be respectful of racial and religious differences in hair textures and be applied evenhandedly.213
c. Courts Should Expand Their Interpretation of Immutability to Include Hair
In our current age, “employment discrimination rarely presents itself in policies that explicitly exclude employees” on the basis of their protected characteristics and, thus, the longevity of Title VII is dependent on “its ability to root out more subtle practices . . . that still operate to disfavor [employees].”214 Rogers and Catastrophe Management highlight that courts have historically been reluctant to broaden their interpretation of immutability to include hairstyles such as dreadlocks, braids, bantu knots, and other styles typically associated with Afrocentric culture. Even in 1981, when Rogers was decided, the court’s refusal to broaden the definition of immutability disregarded the link between hair and one’s identity, and time has only shown how outdated this interpretation has become. It is far beyond time for courts to revise their definition of immutability to recognize how intrinsic hair is to protected characteristics.
Courts have regularly applied other antidiscrimination laws more broadly, such as in Bostock v. Clayton County Georgia, where the Court extended the definition of sex under Title VII to include sexual orientation and gender identity.215
There also currently exist some federal antidiscrimination laws which afford plaintiffs protection from discrimination on the basis of traits that are alterable, such as the Fair Housing Act’s protection of “familial status,” which includes those with children, those who adopt, and those who are pregnant.216 This raises the question of why Title VII has not been similarly extended to allow for a broad general interpretation.217 In light of the extension of the meaning of sex under Title VII and interpretations of the Fair Housing Act, it is time for courts to modernize their approach to immutability in the context of Title VII.218
Some scholars have proposed a new definition of immutability that defines it as a characteristic, that in addition to being beyond the individual’s ability to change, is so engrained in one’s identity that it is effectively unalterable and “ought not be required to be changed.”219 Courts should adopt this interpretation of the immutability doctrine in order to fulfill the truest intent of Title VII.220 Adopting this approach would further create consistency between antidiscrimination acts and provide clarity for plaintiffs seeking to bring claims under Title VII.
4. Recommendations for Employers
Notwithstanding the need for intervention on a federal level, there is much that can be done by employers to ensure their workplace is a welcoming and inclusive environment for all employees, while ensuring that the policies they enact do not have a disparate impact on any of their employees. Indeed, Congress designed the remedial measures of Title VII to serve as a “spur or catalyst” to cause employers “to self-examine and to self-evaluate their employment practices,” and to set out to eliminate any instances of discrimination.221 The following recommendations serve to assist employers with creating a more inclusive environment and should be considered for implementation, regardless of whether there is any shift of hair discrimination laws in an employer’s respective jurisdiction.
Employers may have grooming polices in place; however, it is imperative that employers proceed with extreme caution when the policies relate to immutable characteristics or unduly burden one protected class.222 When seeking to implement a grooming policy, there are certain questions that employers should ask to ensure that their policies will not disproportionally impact any one group of their employees.223 Implementing policies according to these recommendations should assist employers in creating policies that will not have a disparate impact on their employees.224
These questions should consider the purpose of their proposed policy; whether the policy recognizes the full range of natural hair styles and textures; the employer’s industry; whether there are health and safety concerns associated with imposing such a policy; the potential impact the policy will have on employees; if there is a less restrictive means that can be implemented; exceptions to the proposed policy; approaches for those instances where an employee opposes the policy based on their protected characteristics; and whether there is a legitimate, nondiscriminatory business justification for the suggested grooming policy.225
Generally, an employer will have to consider what they deem to be “professional” while balancing the interests of their business and constitutional rights of their employees.226 If the employer does not associate typical hairstyles more closely attributed with Black employees, such as braids, dreadlocks, bantu knots, and so on as professional, the employer should adapt its viewpoint, as these hairstyles can be considered clean, neat, and well-groomed.227 If the employer’s perception of what is considered “professional” encompasses an inclusive wide array of hair textures, the policy will be less likely to violate Title VII.228
The employer should additionally aim to have a policy that is industry specific, as different industries will require different policies.229 If the employer cannot furnish a safety reason, then the employer will need to consider whether its suggested policy meets the EEOC’s business necessity exception.230 The employer should bear in mind that catering to a certain customer base is not a valid justification.231 If the employer is able to furnish a health, safety, or hygiene justification, then the suggested policy becomes more defensible.232
The employer should further analyze the disparate impact a suggested policy will have on the protected classes of employees and should ensure that polices that appear to be neutral do not adversely impact any employees.233
These considerations provide employers with a framework, and it allows employers to maintain necessary control over their workplace, while ensuring employees that employers are doing what they can to minimize policies that may have a disparate impact or may result in the disparate treatment of employees.234 These considerations are further beneficial for employers because they will reduce the amount of litigation against employers.235
If there is a need to implement a grooming policy, the employer should refrain from using subjective terminology such as “excessive hairstyles,” or maintaining policies that require employees to have hair that is “smooth,” or “contained,” unless there is a legitimate business necessity, or the employer can provide some health or safety justification.236
A final suggestion for employers is to implement company-wide diversity and inclusion training, with the goal of changing perceptions surrounding natural hair.237 This would be crucial toward eradicating workplace biases as it would not only work toward ending the stigma against natural hair, but would allow employees to ascertain that a person’s hair texture or hair style has no bearing on their ability to successfully perform their job duties and draws no conclusions regarding their level of professionalism.238 Further, these trainings could prove significant because they would motivate employees to reassess their own implicit biases and educate them in an effort to support their colleagues in upholding a discrimination-free workplace.239
Conclusion
The physical appearance standards that currently dominate society’s notion of professionalism in the workplace clearly conflict with the spirit of Title VII. In enacting Title VII, Congress intended “the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.”240 Research shows that hair is intrinsically linked to the identities of many and the repercussions associated with hair discrimination in the workplace have profound and far-reaching consequences, such that individuals like Chastity Jones and Guy Usher have been denied job opportunities because of their natural hair, and individuals like Renee Rogers and Daoud Ibraheem have received unfavorable treatment due to their employers’ grooming policies.241 These cases further highlight how grooming policies, specifically those that place limitations on hair, can impact employees, creating barriers to professional advancement.242
Beyond having an impact on race, hair discrimination has been shown to affect the national origin- and religion-protected characteristics, such that any federal or state law seeking to eradicate hair discrimination need consider this issue when drafting an amendment to Title VII. It is not idealistic to desire that society work toward eliminating the biases that plague our workplace environments. The recommendations set forth in this Note seek to offer a step in the right direction toward a more inclusive society.