Excerpted From: Adriante Carter, Black Culture Is “Professional”: Causation after Bostock & Racial Stereotypes, 33 University of Florida Journal of Law and Public Policy 119 (Fall, 2022) (189 Footnotes) (Full Document)


AdrianteCarterImagine Kayla, a Black woman, decides to wear locs to work. She is reprimanded by her employer for an “unprofessional appearance.” Undeterred by this reprimand, Kayla continues to wear her locs to work. Kayla's employer eventually terminates her for not conforming with the reprimand she received, finding her lack of assimilation to the “professional appearance” requirement to be a detriment to the work environment.

At first glance, Kayla was fired because of the appearance of her hairstyle and not because of any of the protected categories enumerated in Title VII of the Civil Rights Act of 1964: race, color, religion, sex, and national origin. Workplace grooming policies generally require that hair be groomed in a manner that is professional, businesslike, conservative, not “too excessive,” “eye-catching or different,” or that employees cover hairstyles that are “unconventional,” and so on. These policies are neutral on their face and purport no relationship to the race of the person being disciplined for noncompliance. However, a deeper examination reveals the perverse motive of the employment action. Kayla was fired because of the stereotype that her hair, in its natural state, is unprofessional.

Kayla's decision to wear her hair in its unaltered state is inextricably tied to her race. The delicate relationship between a Black woman and her physical expression of her culture as it relates to her hair has been discussed ad nauseam. The language used in workplace grooming policies is often interpreted by employers to ban African American women's natural hairstyles, including protective styles, from the workplace. Grooming policies excluding Black women's neatly groomed, natural hairstyles are based on stereotypes rooted in race and gender and operate to illegally exclude them from the workplace. Such policies can lead to African American women not being hired, or being fired, simply for wearing their hair in its natural state. This is a form of racial stereotyping and should constitute a violation of Title VII. However, U.S. Supreme Court jurisprudence has so far failed to consistently recognize racial stereotypes as discrimination on the basis of race in violation of Title VII.

This Note will argue that the U.S. Supreme Court decision in Bostock v. Clayton County should be a path for recognizing that racial stereotyping is a form of race discrimination. In Bostock, the definition of sex discrimination was expanded to include discrimination on the basis of sexual orientation and gender identity. Importantly, the Court extrapolated a definition of “but-for” causation within Title VII that allows for multiple but-for causes to be present in the employment decision, but if a protected classification played some role in the adverse employment decision, then the employer violates Title VII. This Note will argue that applying Bostock's theory of causation to racial stereotyping will allow the wrongful nature of such racial discrimination to be fully understood.

Part I tracks the development of causation standards in other antidiscrimination statutes and provisions as defined by Congress and the U.S. Supreme Court through mixed motive discrimination. Part II proceeds by defining single motive discrimination and its requisite legal standard. Part III will discuss the holding of Bostock and the causation standard that the majority opinion extrapolated for status-based discrimination claims brought under Title VII. Part IV attempts to define racial stereotyping through social science and jurisprudence--placing it in the context of Bostock--and explains how the Bostock causation standard can assist courts in examining racial stereotyping cases. This Note concludes by emphasizing the necessity of developing racial stereotype jurisprudence as a clear form of actionable discrimination.

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Returning to Kayla, she was fired because of her failure to conform to the office grooming policies relating to her locs. On its face, the employment decision against Kayla appears to be race-neutral, but as this Note argues, such a decision was not simply made based on Kayla's hairstyle. Underlying the decision is the stereotype that an individual wearing locs has an unprofessional appearance. Under a more expansive understanding of race, locs would function to stand in for race, and therefore the stereotype that locs are unprofessional constitutes racial discrimination. If an employer takes an adverse employment action based on racial stereotypes, then any stereotype-laden statements should function as direct evidence of race discrimination within Title VII. The burden should then automatically shift to the employer to prove that race was not the reason for the action.

Under the Bostock causation standard, an employer should no longer be able to defeat liability simply by providing evidence that the plaintiff did not conform to the workplace culture. The Bostock standard requires changing one thing at a time to determine whether the protected classification was a but-for cause. In Kayla's situation, the employer had at least two factors at play when it made its decision to terminate Kayla: (1) nonconformance to office grooming policies and (2) the racial stereotype that locs are unprofessional. If Kayla's race was instead white, then the assumptions and stereotypes associated with her would change. Locs and other protective hairstyles are fundamentally linked to the African American race. Even if other races wear protective hairstyles, such a choice is not fundamentally tied to those races in the same way as Black individuals. If Kayla's race was different, the underlying stereotype about the professionalism of her hairstyle would change, and there would be no need for Kayla to conform to the workplace culture. Thus, the employment decision changes based on Kayla's race. The fact that a racial stereotype played a role in the decision to terminate Kayla's employment should make the employment decision violative of Title VII.

Racial stereotyping jurisprudence needs to continue to be developed because stereotypes are the most common way that discrimination manifests itself in today's workplaces. The courts should not look at victims of impermissible discrimination and claim that they cannot recover because the employer discriminated against their culture or based on stereotypes rather than discriminating purely on the basis of race. Racial classifications are indistinguishable, and they all have the same detrimental impact on the employee experiencing the discrimination.

Adriante Carter is an Associate in the Healthcare Practice Group at Bradley Arant Boult Cummings LLP in Nashville, Tennessee.