On September 15, 2016, the United States Court of Appeals for the Eleventh Circuit issued a decision that has caused a lot of interest in the EEO field. The decision, which you can read here, involved a suit brought forward by the Equal Employment Opportunity Commission (EEOC) on behalf of Chastity Jones, against Catastrophe Management Solutions (CMS), a claims processing company located in Mobile, Alabama, that provides customer service support to insurance companies.
Ms. Jones, an African-American job applicant, received a job offer that was later rescinded by CMS, because of its “race neutral” grooming policy when Ms. Jones refused to cut off her dreadlocks. EEOC filed the suit alleging that it constituted illegal discrimination on the basis of Ms. Jones’ race violating Title VII of the Civil Rights Act. The Circuit Court upheld the district court’s dismissal of the complaint under Federal Rule of Civil Procedure 12(b)(6) because it did not plausibly allege intentional racial discrimination by CMS against Ms. Jones.
The Circuit Court found, among other things, that Title VII prohibits discrimination based on “immutable traits, and complaint does not assert that dreadlocks—though culturally associated with race—are an immutable characteristic of black persons.” The decision states that no court has accepted EEOC’s view of Title VII in a scenario like this one, and the allegations in the complaint do not set out a plausible claim that CMS intentionally discriminated against Ms. Jones on the basis of her race.
This was a procedural decision of the allegation of racial discrimination, so the Court did not dive into the merits. Here a few interesting facts of the case:
- Jones applied for the customer service representative, who is not required to have contact with the public.
- The job requirements were basic computer skills and professional phone skills.
- Jones applied online and received an interview in person.
- She wore a blue business suit and short dreadlocks to the interview.
- A group of selected applicants, including Ms. Jones, was brought into a room where the HR manager (who is white) informed them that they were hired.
- Successful candidates had to complete lab tests.
- No one discussed Ms. Jones’ hair.
- After the meeting the HR manager asked Ms. Jones if she had her hair in dreadlocks. Ms. Jones said “yes” and the HR manager informed her that she could not be hired with dreadlocks because they tend to “get messy”. Ms. Jones said she would not cut her hair, and the HR manager told her she could not be hired.
- The grooming policy read: “All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines. . . . [H]airstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable[.]”
EEOC argued the following:
- Race is a social construct and has no biological definition.
- The concept of race is not limited to or defined by immutable physical characteristics. However, it offered the following to support how dreadlocks are linked to immutable physical characteristics.
- Dreadlocks are a natural outgrowth of the immutable trait of black hair texture
- Dreadlocks hairstyle is directly associated with the immutable trait of race
- Dreadlocks can be a symbolic expression of racial pride
- Targeting dreadlocks as a basis for employment can be a form of racial stereotyping
- The concept of race encompasses cultural characteristics related to race or ethnicity,” including “grooming practices.”
- Although some non-black persons “have a hair texture that would allow the hair to lock, dreadlocks are nonetheless a racial characteristic, just as skin color is a racial characteristic.”
The Court commented that one of the fatal flaws of EEOC’s argument is that it relied upon disparate treatment theory, rather than disparate impact theory. For those of your who are EEO investigators, you’ll be familiar with the difference. A disparate impact claim is one where a policy, neutral on its face, has a disproportionate negative impact on a group on similar individuals. Whereas, a disparate treatment claim is one in which there is evidence that the employer deliberately discriminated against an individual’s protected class (race, color, religion sex, etc.) Since EEOC applied the wrong theory, the suit had to contain factual evidence that CMS sought to deliberately discriminate against Ms. Jones because of her race.
One final interesting note… in the decision, the Court recognized that the “distinction between immutable and mutable characteristics of race can sometimes be a fine (and difficult) one, but it is a line that courts have drawn. So, for example, discrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not.”
This was ultimately a procedural affirmation of the lower court’s decision because EEOC failed to state a claim that Ms. Jones was intentionally discriminated against because of her race.
It begs the question, what if EEOC had alleged disparate impact in its appeal?
We are interested in hearing from you about this very interesting decision that deals with a variety of questions on the issues surrounding race. Share your comments!
