Thursday, April 4, 2024: EEOC Consent Decree Illustrated Enforcement Stance Regarding Natural Hair Texture & Race Discrimination
Prohibiting Black Employee from Wearing Hair in Natural State Violates Title VII’s Ban on Race Discrimination, Agency Said
Prohibiting a Black employee from wearing her hair in its natural state constitutes race discrimination in violation of Title VII, the U.S. Equal Employment Opportunity (“EEOC”) cautioned in a statement announcing a recent consent decree. Importantly, the EEOC explicitly stated that natural hair texture counts as an “immutable characteristic of race” covered by Title VII.
“Professionalism standards rooted in prejudices associated with racial characteristics are unlawful. No one should be terminated or treated differently because of hair texture associated with their race, under the guise of what is supposedly professional or not,” said Elizabeth Owen, a senior trial attorney at the EEOC in the statement.
What Did the EEOC Allege?
In the case at issue, a drug and medical testing supply company agreed to pay $50,000 and provide other relief to settle EEOC allegations that it fired an employee when she chose to wear her natural hair, rather than a wig of straight hair. The employer interviewed and selected the employee for a sales position while she wore a wig with long, straight hair. After she stopped wearing the wig and started wearing her hair in its naturally curly texture, the company’s owner instructed a human resources manager to counsel the employee about her hair and “looking more professional,” complaining that the worker “came in with beautiful hair,” the EEOC alleged. The employee’s hair – considered type “4-A” on the Andre Walker Hair Typing System – is commonly associated with people who, like the employee, are Black, the agency explained. The owner then directed the employee to begin wearing her wig with straight hair again, and when the employee continued to wear her natural hair, the company fired her, the EEOC alleged. The company later hired a white worker in her place, according to the EEOC’s lawsuit filed in the U.S. District Court for the Western District of Louisiana in October 2021.
On top of the monetary payment, the three-year consent decree requires the company to “enact policies that prohibit discrimination on the basis of race or any immutable characteristic of race, including hair texture, and policies that prohibit discrimination against an employee who chooses to display their natural hair texture or style it in a way that is protective of their natural hair or scalp.”
What Is the Relevant Law?
Presently, there is no legal consensus as to whether Title VII’s prohibition on race discrimination covers natural hair texture. Meanwhile, there is a movement to amend federal law to have the definition of race discrimination not only explicitly include natural hair texture but also include related protective hair styles.
On its website, the EEOC states that “Race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features).”
Notably, the EEOC’s position (as evidenced by the consent decree requirements described above) covers both natural hair texture and styling it in a way that is protective of a worker’s natural hair or scalp. This stance is in alignment with proponents of the CROWN Act, The model CROWN Act, which stands for “Creating a Respectful and Open World for Natural Hair,” would amend existing law to prohibit race-based hair discrimination, in employment and education, because of natural hair texture or protective hairstyles including braids, locs, twists, or bantu knots. About 23 states (and multiple localities) have enacted this legislation in various forms, some of which do not conform completely with the model version of the measure. Efforts to pass this legislation on the federal level have thus far not met with success.
In 2016, a three-judge panel of the Eleventh Circuit Court of Appeals ruled against the EEOC in a case where the agency alleged that an employer violated Title VII when it, pursuant to its race-neutral grooming policy, rescinded a job offer made to a Black worker because she refused to cut off her dreadlocks. The appeals court affirmed a lower court’s dismissal of the lawsuit because “Title VII prohibits discrimination based on immutable traits,” and the EEOC did not allege that “dreadlocks—though culturally associated with race—are an immutable characteristic of Black persons.”
“We recognize 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,” wrote Judge Adalberto Jordan on behalf of the panel. “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.”
The following year, the Eleventh Circuit rejected the EEOC’s request to hear the case – EEOC v. Catastrophe Management Solutions – “en banc,” i.e. to have all of the appellate court’s available judges hear the case and vote on the decision.