Sunday, September 18, 2016

EEOC v. Catastrophe Management Solutions: Does prohibiting dreadlocks discriminate against black employees?

EEOC v. Catastrophe Management Solutions, No. 14-13482 (11th Cir. Sept. 15, 2016), is an important new decision addressing the bounds of what constitutes intentional race discrimination under Title VII of the Civil Rights Act of 1964. In this case, the EEOC argued that CMS intentionally discriminated against Chastity Jones, a black applicant, based on her race by refusing to hire her unless she cut off her dreadlocks, which were prohibited by CMS's race-neutral grooming policy.

To support its claim that CMS subjected Jones to intentional race discrimination, the EEOC argued 
that dreadlocks are a natural outgrowth of the immutable trait of black hair texture; that the dreadlocks hairstyle is directly associated with the immutable trait of race; that dreadlocks can be a symbolic expression of racial pride; and that targeting dreadlocks as a basis for employment can be a form of racial stereotyping.
Rejecting these arguments and affirming the dismissal of the EEOC's complaint, the court explained:
First, the EEOC . . . conflates the distinct Title VII theories of disparate treatment (the sole theory on which it is proceeding) and disparate impact (the theory it has expressly disclaimed). Second, our precedent holds that Title VII prohibits discrimination based on immutable traits, and the proposed amended complaint does not assert that dreadlocks -- though culturally associated with race -- are an immutable characteristic of black persons. Third, we are not persuaded by the guidance in the EEOC's Compliance Manual [stating that "race" includes "cultural characteristics often linked to race or ethnicity"] because it conflicts with the position taken by the EEOC in an earlier administrative appeal, and because the EEOC has not offered any explanation for its change in course. Fourth, no court has accepted the EEOC's view of Title VII in a scenario like this one, and the allegations in the proposed amended complaint do not set out a plausible claim that CMS intentionally discriminated against Ms. Jones on the basis of her race.
Given the novelty of the EEOC's contentions, the EEOC may have blundered in overlooking the need for a limiting principle. Although the link between dreadlocks and race could help establish in some circumstances that a prohibition against dreadlocks constituted intentional discrimination, the EEOC pushed the envelope too far in arguing that the link was sufficient in and of itself. As the Eleventh Circuit noted, language discrimination is not per se intentional national origin discrimination. Yet an individual's native language seems to be more closely related to his national origin than the wearing of dreadlocks is to a black individual's race, so under the EEOC's analysis, language discrimination seems to constitute per se intentional discrimination based on national origin, and perhaps even race, if Hispanics, for instance, are considered a race as the Second Circuit recently held in Village of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016). 

Although the court did not address whether the EEOC could have brought a disparate impact claim, that is foreclosed by the analysis that the court relied on in rejecting the EEOC’s disparate treatment claim. In particular, the court noted that in Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), the Fifth Circuit concluded that an English-only policy did not have a disparate impact on fully bilingual Hispanic employees, since they had a choice about whether to speak English. Likewise, because black individuals have a choice about whether to wear their hair in dreadlocks, a policy that prohibits that hairstyle does not have an adverse impact based on race, even if dreadlocks are more common among some races than others. Moreover, as I discussed in this previous post, disparate impact liability does not apply to terms or conditions of employment, only screening mechanisms, and in this case, the challenged grooming policy was clearly a term or condition of employment.

Finally, the EEOC contended in oral argument that a white person who wore her hair in dreadlocks to support her black colleagues could also bring a race-based disparate treatment claim. I don't have the benefit of knowing what the EEOC specifically argued, but this doesn't seem correct. Perhaps the EEOC was contending that the white employee's conduct constituted protected opposition, but that would give her a retaliation claim. A white employee also could have standing to allege that she was aggrieved by discrimination against her black colleagues. But that would not depend on why the white employee wore dreadlocks. I discussed third-party standing in this prior post.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.