Does Title VII protect employees from discrimination based on their hairstyles? In Equal Employment Opportunity Commission v. Catastrophe Management Solutions, the Eleventh Circuit Court of Appeals considered this question when an employer rescinded a job offer pursuant to its race-neutral grooming policy.

CONDITIONAL OFFER

A job applicant received a conditional offer of employment for a customer relations position that didn’t involve face-to-face interaction with the public. But the applicant was told by the employer’s human resources manager that she wouldn’t be hired unless she got rid of her dreadlocks. The applicant refused to cut her hair, so the manager revoked the employment offer, citing the company’s grooming policy.

The policy stated that employee dress and grooming was expected “to project a professional and businesslike image while adhering to the company and industry standards and/or guidelines.” It elaborated that “hairstyle should reflect a business/professional image” and that “no excessive hairstyles or unusual colors are acceptable.”

The Equal Employment Opportunity Commission (EEOC) brought suit against the employer on behalf of the applicant for unlawful race discrimination. The trial court dismissed the complaint and the EEOC appealed.

CONGRESSIONAL INTENTION

The appeals court affirmed, noting that race isn’t defined within the text of Title VII and that the EEOC hasn’t defined it through any regulations. Therefore, the court analyzed what Congress would have intended “race” to mean in 1964 when it passed the Civil Rights Act, stating:

It appears more likely than not that “race” [in Title VII], as a matter of language and usage, referred to common physical characteristics shared by a group of people and transmitted by their ancestors over time. Although the period dictionaries did not use the word “immutable” to describe such common characteristics, it is not much of a linguistic stretch to think that such characteristics are a matter of birth, and not culture.

The court also pointed out that Title VII had been amended to protect not just religion, but “religious observance and practice,” yet it hadn’t been amended to expand protections for race. Therefore, the court held that Title VII protected persons with respect to their “immutable” physical characteristics but not their cultural practices and traits.

POWER TO PERSUADE

The EEOC’s complaint didn’t allege that dreadlocks were an immutable characteristic of black people, only that they were culturally associated with race. Its claim failed, according to the court, because its allegations didn’t suggest that the employer used the grooming policy to intentionally discriminate against the applicant based on race.

In support of its argument, the EEOC relied on its compliance manual, which sets forth that Title VII extends protections to cultural characteristics such as name, manner of dress and grooming practices. However, the court stated that it would defer to the EEOC’s interpretation only to the extent that “it has the power to persuade.” Persuasiveness is determined by several factors, including: 

• Thoroughness in its consideration,
• Validity of its reasoning, and
• Consistency.

After reviewing these factors, the court stated that it wasn’t persuaded by the EEOC’s compliance manual because it conflicted with a previous position. In an earlier administrative appeal, the EEOC had determined that grooming policies that prohibited dreadlocks and similar hairstyles were outside the scope of Title VII — even when the prohibition targeted hairstyles generally associated with a particular race. In the current case, the EEOC failed to offer an explanation for its change of opinion. As such, its manual wasn’t provided deference or weight.

Moreover, the court found that no other court had accepted the EEOC’s new position when faced with similar facts. Every court that considered the issue had rejected the argument that Title VII protected hairstyles culturally associated with race. Thus, the EEOC had not met its burden in setting forth that the defendant had intentionally discriminated against the applicant on the basis of her race. However, the court did note that, because of the complexity and role of race in society, it might be a good idea to resolve the issue of what “race” means under Title VII through the democratic process.

A REMINDER

Employers should keep in mind that, while Title VII may not be interpreted to cover cultural characteristics, many federal agencies have pushed for such expansion. In addition, state statutes may offer more protections and could be interpreted to protect cultural characteristics of race. Therefore, you must continually review your organization’s grooming policies to ensure they’re in compliance with the law.