Excerpted From: Sidney E. Holler, Braids, Locs, and Bostock: Title VII's Elusive Protections for Lgbtq+ and Black Women Employees, Journal of Gender, Race and Justice 223 (Winter, 2023) (355 Footnotes) (Full Document)


SidneyEHollerWhiteness and patriarchy frame our understanding of what it means to be and look “professional.” Corporate America, which is overwhelmingly controlled by white males, has established workplace grooming and dress standards that are inherently rooted in gender and racial stereotypes. Such standards result in policies that place Black women at a unique disadvantage, particularly when it comes to hair. “Black women are 1.5 times more likely than white women to be sent home from the workplace because of their hair.” They are 80% more likely than white women to believe that they must change their hair from its natural state to fit in at the office. Black women who do not conform to grooming policies often face a harsh and unfair choice: either change their look to appear more “professional” or face an adverse employment action. The problem is that looking “professional” by contemporary corporate standards usually means looking less Black.

Courts have confronted the legal claims resulting from this discriminatory dilemma since the 1970s. In one seminal grooming policy discrimination case, Rogers v. American Airlines, the court upheld an employer's right to prohibit braided hairstyles in the workplace and distinguished between biological and sociocultural aspects of race, protecting only the former. The court analyzed the race and sex discrimination claims separately, dismissing them both and refusing to assess the plaintiff's injury particularly as a Black woman who experiences racism and sexism simultaneously. Indeed, “Rogers proceeds from the premise that, although racism and sexism share much in common, they are nonetheless fundamentally unrelated phenomena--a proposition proved false by history and contemporary reality.” This Note argues that courts' refusal to reassess their narrow understanding of racial discrimination, and refusal to allow intersectional claims in cases like Rogers, represents a failure to achieve the goals of Title VII. Such failures render Black women statutorily invisible, creating troubling precedent that courts still follow 40 years later.

Black women need better protections in the workplace. Thankfully, a new piece of legislation promises to provide that much needed protection. In 2019, Dove and the Creating a Respectful and Open World for Natural Hair (CROWN) Coalition partnered with State Senator Holly J. Mitchell to introduce the CROWN Act in California. The bill recognizes that hair has historically served as a basis for discrimination and racial classification due to “longstanding racial and national origin biases and stereotypes associated with hair texture and style.” These biases and stereotypes often result in school and workplace policies and practices that discriminate by prohibiting natural or protective hairstyles commonly worn by people of African descent. Therefore, the CROWN Act seeks to eliminate discrimination towards race-based natural and protective hairstyles by extending statutory protection to include hair textures and styles such as braids, locs, twists, cornrows, fades, afros, and knots in the workplace and public schools. As of October 2022, 19 states have passed the CROWN Act: Alaska, California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maine, Maryland, Massachusetts, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Virginia, and Washington. At least 25 states have filed the Act or completed pre-filing, and 44 cities and counties have passed it in states where the Act has not yet passed.

*227 Though the Act spread through the states quickly in the last three years, its progress has slowed, especially in the country's most conservative states. And even despite the early momentum within state legislatures, Congress has yet to pass a federal version of the Act. The House of Representatives initially passed the Act on September 21, 2020, but it stalled in the Senate. Senator Cory Booker and Congresswoman Bonnie Watson Coleman then reintroduced the bill in March 2021 in the Senate and the House of Representatives. Finally, on March 18, 2022, the House passed the CROWN Act, sending it to the Senate Judiciary Committee for consideration. Still, despite the Democrats' narrow majority in the Senate and President Biden's support, federal passage could take years, leaving Black women in most of the country unprotected from race discrimination based on hair. Not held accountable by current federal anti-discrimination legislation, employers will continue to legally deny Black women professional opportunities in the meantime.

By declining to adopt an intersectional approach and ignoring the sociocultural motivations behind racial discrimination in their analyses, courts in grooming policy discrimination cases like Rogers v. American Airlines have left a gaping hole in Title VII protections for Black women with traditionally Black hairstyles. Until Congress passes a federal CROWN Act to fill that gap, lawyers in grooming policy discrimination cases must push for judicial decisions that expand Title VII's protections. One Title VII case proves that such success is possible, even when unexpected: Bostock v. Clayton County. Despite several legal obstacles, Bostock expanded Title VII's protections for Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ+) employees after decades of gradual socio-political progress. The Court's “textualism plus” reasoning synthesized the language of key legal precedent to hold that LGBTQ+ discrimination violates Title VII's prohibition on sex stereotypes, cementing LGBTQ+ individuals' right to be free from workplace discrimination nationwide.

This Note compares LGBTQ+ legal history and Title VII sex discrimination jurisprudence with the history of judicial and societal understandings of race and the Title VII race discrimination jurisprudence. It argues that social and cultural norms support judicial expansion of Title VII's protections to Black women employees facing race-based hair discrimination. However, although Title VII grooming policy plaintiffs face many of the same obstacles as Bostock's LGBTQ+ plaintiffs, it is unlikely that they will be able to achieve the same success. Title VII race discrimination precedent has failed to articulate the concepts necessary to expand protection to Black women facing race-based hair discrimination. Without (1) widespread judicial recognition of racial discrimination based on sociocultural considerations and (2) widespread judicial approval of race-sex intersectional claims, grooming policy discrimination plaintiffs may be left unprotected for the foreseeable future.

Part II of this Note will discuss intersectionality theory, Title VII race discrimination and employer grooming policies, grooming policy discrimination jurisprudence, and Title VII sex discrimination. Part III will analyze the “textualist plus” reasoning in Bostock v. Clayton County and examine whether Black women plaintiffs can recreate Bostock's path to success. Part IV will conclude and suggest that academics should continue to develop scholarship in this area to find a creative solution to this problem.

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Because of their existence at the intersection of race and gender, Black women are particularly vulnerable when it comes to employment discrimination. Grooming policy discrimination cases demonstrate this vulnerability--Black women who choose to wear their hair in natural, protective, or traditionally Black styles are not protected from racial discrimination based on opposition to those styles. Existing Title VII grooming policy jurisprudence has refused to acknowledge that racial characteristics can be based on more than biological or immutable physical characteristics. After decades of similar failures, the LGBTQ+ plaintiffs in Bostock v. Clayton County finally succeeded in expanded their rights under Title VII, providing hope for other marginalized and under-protected groups. Unfortunately, Black women plaintiffs will not be able to recreate Bostock's success until the Court reassess its understanding of racial discrimination and recognizes intersectional claims. Experts must continue researching this important gap in Title VII jurisprudence so that we may find a solution that finally succeeds in protecting Black women plaintiffs in grooming policy discrimination cases. With luck, Congress will pass the CROWN Act and finally write that protection into law.