April 28, 2015

Requiring professional-looking haircuts is not racial discrimination

By Joshua P. Thompson Senior Attorney

Think about the following scenario.  A job seeker sees an ad for a sales job.  She has all the correct qualifications.  Her interview goes great.  The business says they want to hire her, but because she will be selling the business to the public, she must get a professional-looking haircut.  The job seeker refuses.  Instead, she contacts the EEOC and says that the business is discriminating against her on the basis of race. The EEOC agrees, and sues the company for intentional racial discrimination.

That’s exactly what happened in EEOC v. Catastrophe Management Solutions. Fortunately, the federal district court dismissed EEOC’s lawsuit.  It held, “A hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic. Therefore, the Complaint fails to state a plausible claims for relief.” Undeterred, the EEOC has appealed the case to the Eleventh Circuit Court of Appeals. PLF filed this amicus brief in support of the business.

If this lawsuit sounds ridiculous, then you understand the case perfectly. For at least four decades, courts have held that a business’s hairstyle requirement does not — necessarily — violate our civil rights laws. Title VII prohibits discrimination based on race; it does not prohibit discrimination based on hairstyle.

Of course, it’s possible that a business is just using hairstyle as a proxy for racial discrimination. For example, imagine if a business refused to hire every black individual that applied, and then defended its decision by saying it was just “coincidence,” and it was truly just making hairstyle decisions. The business would have a hard time defending its actions. Title VII recognizes that some businesses might not be upfront with their discrimination, and would allow plaintiffs to prove that the “hairstyle justification” was just a pretext for discrimination.

It’s also possible that a business’s hairstyle requirement affects people of a certain race more harshly. Imagine if a business had a requirement that every employee style their hair in an afro. While that policy may not be intentionally discriminatory, it would have a “disparate impact” on individuals from certain races, and could be challenged as illegal under Title VII.

While both of those scenarios could plausibly apply to this case, the EEOC is not arguing that the business’s hairstyle requirement is just a proxy for race, or even that the policy has a disparate impact on certain racial groups. The EEOC argues that the business’s policy is facially discriminatory. That is, the EEOC argues that the policy is necessarily discriminatory even if it is not a being used as a proxy for race and even if it affects all races equally.  In essence, EEOC is arguing that “hairstyle” and “race” are synonymous, and that restricting what one can do about the former, necessarily discriminates on the basis of the latter.

Why would the EEOC propound such a ludicrous theory when there are other available avenues for pursuing a discrimination claim? There are a couple of reasons. First, there is no evidence in this case that the business was using race as a proxy for its hairstyle requirement, and the EEOC also had no evidence that the business’s policy affected African-Americans more harshly. More importantly, however, the EEOC is seeking to create a fundamentally radical change to Title VII through the courts.

Title VII prohibits discrimination on the basis of certain immutable characteristics — like race, sex, and ethnicity. If the EEOC can convince a federal appellate court that discriminating on the basis of hairstyle is the same as racial discrimination, it would transform Title VII from a statute that prohibits businesses from making decisions on the basis of race to a statute that prohibits businesses from making decisions on the basis of anything that might have a tangential association to “cultural identity.” There would be no end to the lawsuits that could be brought by disgruntled plaintiffs. That is turn would transform the EEOC into the de facto decisionmaker on what is prohibited and what is permitted.

PLF is supporting the business in the case, because we do not believe that businesses should be held hostage to EEOC whim.  Our nation’s discrimination laws prohibit race-based decisions, because race is immutable, our nation has a sordid history with respect to racial discrimination in the workplace, and that’s what Congress wrote into Title VII. Requiring employees to look professional in the workplace — with professional haircuts — is not the same thing.

The past few years have brought a number of resounding defeats to the EEOC and its attempt to expand our nation’s civil rights laws.  The result in this case should be similar.

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Equal Employment Opportunity Commission v. Catastrophe Management Solutions

Catastrophe Management Solutions requires its employees to be “dressed and groomed in a manner that projects a professional and businesslike image” and does not allow hairstyles that are “excessive” or an “unusual color.” An African-American woman with dreadlocks was offered a job on the condition that she change her hairstyle to comply with company policy. She complained to EEOC, which sued Catastrophe for violating Title VII’s prohibition of intentional racial discrimination. The district court dismissed the case. On appeal, PLF filed an amicus brief arguing that an employment policy that requires professional haircuts, and interprets and applies the policy to prohibit dreadlocks on everyone, can never facially discriminate against black individuals as a matter of law. The Eleventh Circuit affirmed.

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