After a really long delay, the Eleventh Circuit finally denied the EEOC's request for rehearing by the full court in EEOC v. Catastrophe Management Solutions, No. 14-13482. As I discuss in this prior post, I think the panel was right in rejecting the EEOC's claim, which goes too far in contending that discrimination based on a race-linked characteristic is inherently a form of race discrimination.
As noted in Judge Beverly Martin's dissent from the denial of rehearing, the Supreme Court has recognized that discrimination based on stereotypes is prohibited, such as treating a woman adversely based on sex stereotypes. What Judge Martin overlooks, however, is that there still must be some differential treatment between protected groups. So if an employer treats assertive women less favorably than assertive men based on the stereotype that women should not be assertive, then the employer has engaged in sex discrimination even though assertiveness is not an immutable characteristic. On the other hand, if an employer disfavors all assertive employees, then it has not treated women worse than men, or vice versa, so it has not engaged in sex discrimination.
Likewise, in this case, the EEOC has not contended that the defendant has singled out black employees with dreadlocks for worse treatment than white employees with dreadlocks, so the Eleventh Circuit rightly rejected its claim.
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.