Abstract

Excerpted From: Alexis Boyd, Hair Me Out: Why Discrimination Against Black Hair Is Race Discrimination under Title VII, 31 American University Journal of Gender, Social Policy and the Law 75 (2023) (189 Footnotes) (Full Document Requested)

In May 2010, Chastity Jones sought employment as a customer service representative at Catastrophe Management Solutions (“CMS”), a claims processing company located in Mobile, Alabama. When asked for an in-person interview, Jones, a Black woman, arrived in a suit and her hair in “short dreadlocks,” or locs, a type of natural hairstyle common in the Black community. Despite being qualified for the position, Jones would later have her offer rescinded because of her hair. CMS claimed that locs “tend to get messy” and violated the “neutral” dress code and hair policy requiring employees to be “professional and business-like.” Therefore, CMS refused to hire Ms. Jones unless she cut her locs off. When Jones sought redress in court because she was not hired based on the employer's racial bias of Black hair, the Eleventh Circuit denied that CMS committed any form of proscribed discrimination because discrimination based on a mutable racial characteristic is not protected under Title VII.

Jones's case is not an isolated incident and represents the continued structural racism in America, which legally allows private and public entities to police and control the appearance of Black people in the United States. Many Black professionals have admitted that they constantly worry whether they will be judged professionally and societally when they wear their natural hair in typically Black styles. For these reasons, civil rights advocates and Black legal scholars have written extensively on why federal courts should expand the definition of race discrimination to include hair discrimination.

Although the Eleventh Circuit stated that expanding Title VII's definition of race discrimination to include hair discrimination should be left for Congress to decide, both the Supreme Court and Congress have established precedents for expanding protection to another protected class under Title VII: sex discrimination. Sex-based discrimination can include both immutable and mutable characteristics, such as sex assigned at birth, the ability to become pregnant, and other characteristics associated with a certain sex, such as having children or life expectancy. Conversely, the Eleventh Circuit in Jones' case found that while Title VII protects immutable characteristics like hair texture, it does not protect mutable racial characteristics such as hairstyle. States have relied on local legislation to prevent discriminatory policies that target Black hair by passing the CROWN Act (Creating a Respectful and Open Workplace/World for Natural Hair Act). As of March 2021, Congress reintroduced a federal CROWN Act, which passed in the House on March 18, 2022.

This Comment argues that Title VII should protect employees against racially based hair discrimination at work because courts should interpret racially discriminatory behavior as broadly as sex-based discrimination and because discrimination against Black hairstyles is discrimination against Black culture and, thus, Black people as a race. Part II explains the cultural importance of Black hairstyles, the historical context of Black hair discrimination with race discrimination, pivotal cases involving Black hair, and the expanding protections for sex discrimination. Part III argues that Title VII's prohibition on discrimination because of race should expand to preclude discrimination of Black hair and hairstyles to mirror the same expanding statutory interpretation of discrimination because of sex. Part III then analyzes how expanding the definition of race discrimination would change the outcome of the Eleventh Circuit's holding in Catastrophe Management Solutions. Part IV proposes that Congress should clarify the definition of race-based discrimination under Title VII to include cultural hairstyles of Black people, and courts should expand the definition of race-based discrimination to include both mutable and immutable definitions of race, such as hair types and styles common in certain racial groups. Finally, Part V concludes that Title VII's prohibition against racial discrimination should include the discrimination of Black hairstyles because federal legislative and judicial precedent should expand race discrimination under Title VII just as it has done with sex discrimination.

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Courts and Congress must reassess their interpretation of Title VII's prohibition against race discrimination. Much like how the definition of sex discrimination has become more inclusive, the definition of race discrimination must also expand to protect more insidious forms of race-based discrimination. In the United States, Black people's hair and hairstyles were often used to denote their class and, in many cases, to take away or police their freedom. Under the current definition of race discrimination, employers are allowed to employ these same tactics to police, harass, or fire Black employees.

Even in the legal field, Black legal professionals have discussed feeling anxious or judged for wearing their natural hair in the workplace or courtrooms, which affects their mental health and ability to adequately accomplish their jobs. However, many Black professionals have felt empowered seeing Ketanji Brown Jackson adorn her locs at her Senate confirmation hearing. Jackson's nomination as the first Black woman to sit on the Supreme Court has not only inspired many more Black girls and women to pursue a legal degree but also has encouraged Black women to wear their natural hair in professional settings. However, neither Jackson nor all the other Black women who choose to wear their natural hair are federally protected from hair discrimination.

To adhere to the spirit of the Civil Rights Act, courts must interpret Title VII to prohibit discrimination against hair and hairstyles associated with race. Title VII can only truly protect Black workers from racial discrimination if the statute protects all characteristics of race, including hair and hairstyles.

Alexis Boyd attends American University Washington College of Law as a 3L and is interested in practicing labor & employment law or civil rights law.