HR INSIGHTS
EMPLOYER WINS “DREADFUL” CASE W
ith the support of our colleagues David Middlebrooks and Whitney Brown, the
Richard I. Lehr
Lehr Middlebrooks Vreeland & Thompson, P.C.
United States Court of Appeals for the Eleventh Circuit upheld a lower court’s dismissal of an Equal Opportunity Employment Commission (EEOC) lawsuit over dreadlocks, EEOC v. Catastrophe Management Solutions (Sept. 15, 2016). The company had a grooming policy that required employees to wear “professional/ business” hairstyles and prohibited “exces- sive hairstyles or unusual colors.” Chastity Jones was hired to work as a customer service representative and was allegedly told that she would have to remove her dreadlocks, which she refused to do. The company withdrew its offer of employment, and Jones filed a discrim- ination charge with the EEOC, alleging that the employer’s alleged policy and decision about dreadlocks was race discrimination. The employer asserted that its decision was
based upon a hairstyle, not an “immutable” characteristic, such as race. Furthermore, the employer provided the EEOC with evidence of other hairstyles or appearance issues that were also unacceptable to the employer, such as long hair on men and nose rings. Notwith- standing this, the EEOC issued a cause deter- mination and sued the company in the United States District Court for the Southern District of Alabama. The company filed a Motion to Dis- miss because the prohibition of a hairstyle was not racially discriminatory, which the District Court granted. Undeterred, the EEOC appealed the well-reasoned decision to the Eleventh Circuit. The EEOC argued that the protected class
of “race” includes “individual expression” and expression that is “culturally associated with race.” In upholding the lower court’s dismissal of the lawsuit, the Eleventh Circuit stated that “every court to have considered the issue has rejected the argument that Title VII protects hairstyles culturally associated with race.” The court also noted that the EEOC pursued the theory of disparate treatment (intentional dis- crimination), as opposed to disparate impact. In a disparate treatment claim, the plaintiff must prove that the employer’s motive was
illegal. In a claim of discriminatory impact, motive is not necessary for a plaintiff to prevail. In a disparate impact claim, the theory is that a policy that is neutral on its face has a dis- proportionate impact on a protected class and if so, the employer has to show the business necessity of that neutral factor and that alterna- tives with less of a discriminatory impact were unavailable. The court also considered the legislative
history of “race” as a protected class. According to the court, “in the 1960s, as today, ‘race’ was a complex concept that defied a single defi- nition.” However, the court stated that con- gressional intent about defining race refer to “common physical characteristics shared by a group of people and transmitted by their ances- tors.” The court rejected the EEOC’s definition of race as more expansive culturally, to include the wearing of dreadlocks. The court explained that “discrimination on the basis of black hair texture (an immutable characteristic) is prohib- ited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not.” We expect the EEOC to not take no for an answer and continue to push “cultural” bases for Title VII race discrimination claims. Em- ployers should be aware that broader issues regarding individual expression will continue to arise, whether they may be culturally identified with a particular race, gender or other protect- ed class. 7
Phone consultations with LMVT are a member benefit and are included in the cost of NALP membership. Please call the LMVT main office at 205-326-3002 and ask for either Richard Lehr or Frank Rox if you have any questions concerning this article. Frank Rox may also be reached at 404-312-4755.
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