Since the recent explosion of the natural hair movement, many Black women are learning to embrace and love the hair that grows out of our heads as it grows out of our heads.

Unfortunately, the law has not caught up, thus permitting companies to impose unfair grooming standards. These standards often are not built for Black women, as they ignore that many of us have kinky and coarse natural hair—or nappy in Black parlance—and that the long, flowing straight hair that Black women from Michelle Obama to Beyoncé sport takes work, time, and frequently harsh chemicals, scorching heat, weaves, or wigs to achieve.

That courts have ruled against Black women in hair discrimination cases is no surprise, given the overwhelming whiteness of the federal judiciary. White America, by and large, has never bothered to understand Black hair, but rather has expected that we conform our hair to their Eurocentric beauty standards—long, straight locks. (Notably, straight hair can belong to Asians, Latinas, whites, and indeed some Black folks).

This expectation often plagues Black women who are then forced to spend thousands of dollars annually on relaxers, flat irons, bimonthly salon appointments, all in an effort to meet work-sanctioned grooming standards.

It’s exhausting. But is such hair discrimination unconstitutional? The U.S. Equal Employment Opportunities Commission (EEOC), the agency responsible for enforcing federal laws that make it illegal for employers to discriminate on the basis of race, thinks it is. But the Supreme Court hasn’t yet agreed, thus leaving lower courts to muddle through without guidance from the high court.

Catastrophe Management Solutions: A Case Study

Late last year, the 11th Circuit Court of Appeals dismissed a lawsuit Chastity Jones filed against Catastrophe Management Solutions (CMS), alleging that the company had discriminated against her when it refused to hire her unless she cut off her dreadlocks.

Jones had completed an online application for a customer service representative job at CMS and was selected for an in-person interview, according to the lawsuit. She arrived for the interview dressed in a blue business suit and wearing her hair in short dreadlocks. After Jones was offered the job, CMS’ HR manager, Jeannie Wilson, asked her whether she had her hair in dreadlocks. Jones replied yes. Wilson responded that CMS could not hire her “with the dreadlocks.” When Jones asked why, Wilson told her “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about,” the lawsuit says.

At the time, CMS interpreted its hairstyle policy as banning dreadlocks. The policy said that an employee’s “hairstyle should reflect a business/professional image” and that “[n]o excessive hairstyles or unusual colors are acceptable.”

The EEOC filed a lawsuit on behalf of Jones, alleging that she had been the subject of racial discrimination. The EEOC argued that race doesn’t have a biological definition and is a social construct, and that race is not defined or limited by immutable characteristics. The EEOC also alleged that race can encompass “cultural characteristics related to race or ethnicity,” including “grooming practices”; and that even though some non-Black people’s hair texture can lock, “dreadlocks are nonetheless a racial characteristic, just as skin color is a racial characteristic.”

A federal district court in Alabama disagreed, as did a three-judge panel of the 11th Circuit Court of Appeals.

Both courts ruled against Jones based partially on a procedural quirk in the law: The EEOC chose to proceed under a theory of disparate treatment rather than disparate impact, and that choice made it harder for the agency to win its case.

From a legal perspective, the difference between disparate impact and disparate treatment matters. Disparate treatment addresses intentional discrimination. For example, if CMS had a policy that banned Black women from working as insurance adjusters—because insurance adjusters deal with customers and customers just felt uncomfortable about dealing with Black insurance adjusters—that would be disparate treatment.

Disparate impact, on the other hand, challenges policies that while neutral on their face—because they apply to everybody—nevertheless have a disproportionate impact on a group that Title VII protects.

For example, CMS’ policy on its face is race neutral. Just as CMS wouldn’t hire Chastity Jones because she had dreadlocks, they also wouldn’t have hired a white woman, or any other person, if she showed up at an interview sporting dreadlocks.

But these seemingly racially neutral policies disproportionately affect Black women because they exclude Black women’s natural hairstyles based on stereotypes that natural hairstyles are unprofessional, messy, not neat, political, radical, too eye-catching, or excessive. These sorts of policies further reinforce the white supremacist notion that natural Black hairstyles don’t belong in the workplace. As a result, far too many Black women who choose to wear natural hairstyles—locs, braids, twists, knots—are either excluded from the workplace entirely or are forced to conform to white hair standards either by wearing wigs, weaves, or straightening their hair. This sort of Herculean effort is, of course, not generally expected of white women, whose hair is considered the norm.

Had the EEOC pursued a disparate impact case, it might have had better success.

But discussions of disparate impact and treatment aside, the 11th Circuit still got it wrong.

The court ruled against Jones based on antiquated and incorrect notions about race being a biological imperative rather than a social construct.

While acknowledging that the “emerging contemporary understanding of the meaning of race” suggests that it is “only a very powerful idea and not at all a biological fact,” the 11th Circuit nevertheless proceeded as if race were a biological fact marked by fixed physical characteristics before getting lost in a logic hole trying to differentiate between racial characteristics that are immutable and those that are not.

That, of course, is a fool’s game. According to the 11th Circuit’s bizarre logic, Black hair texture is an immutable characteristic like skin color, but Black hair styles are not because they can be changed. That statement alone demonstrates how confused the 11th Circuit is when it comes to race—Black hair texture refers to black hair as a biological element of race. Black hair styles, however, refer to Black hair as a cultural element of race.  

The Roots of Black Hairstyles

Africans historically took pride in wearing their hair in clean, neat, and well-groomed styles. As Ayana Byrd and Lori Tharps point out in their seminal work Hair Story: Untangling the Roots of Black Hair in America, various African tribes adopted elaborate hair braiding patterns that were unique to their own tribes and known by other tribes as being unique to that particular tribe.

“In the early fifteenth century, hair functioned as a carrier of messages in most West African societies,” Byrd and Tharps write.

“Within these cultures, hair was an integral part of a complex language system. Ever since African civilizations bloomed, hairstyles have been used to indicate a person’s marital status, age, religion, ethnic identity, wealth, and rank within the community.”

Because Africans’ identity was inexorably intertwined with their hair, when slave traders began to traffic in African people, one of the first things they did was to shave enslaved people’s heads in order to strip them of their individuality and ties to their community. (Is it any wonder that today, for many Black women, their hair is intertwined with their sense of self and identity?)

The kinkiness or nappiness of Black people’s hair became a source of derision among white people and a source of shame among enslaved people. African women began wearing head rags to protect their hair from the sun and judgment. 

As Byrd and Tharps point out, an enslaved person’s job sometimes determined how they would wear their hair. Enslaved women who worked in the fields wore head rags. But enslaved women who worked or lived in close contact with whites began to style their hair to imitate their owners’ styles.

And thus began the hundreds-year old tradition of Black women in white spaces trying to style their hair to approximate whiteness.

Black hair = bad.

White hair = good.

That is the message that has been indelibly burned into Black women’s consciousness since childhood, when we often would put pillowcases on our heads and imagine what it would be like to have that long flowing hair.

As a result of the natural hair movement, many Black women have changed their relationship with their hair. It’s time that the law change its relationship to Black women’s hair too.

Hair Discrimination Is a Civil Rights Issue 

Certainly when Congress passed the Civil Rights Act of 1964, it is unlikely when considering Title VII and discrimination on the basis of race, that it gave much thought to prohibitions on quintessentially Black hairstyles as being part and parcel of racial discrimination.

But the beauty of Title VII is that it can be expanded to reach injustices not contemplated in 1964.

For example, when Congress passed Title VII, it did not consider gender stereotyping to be sex discrimination, but the Supreme Court in Price Waterhouse v. Hopkins expanded Title VII’s reach to include gender stereotyping. Congress also didn’t initially consider sexual harassment to be sex discrimination, but in Meritor Savings Bank v. Vinson, the Court held that a claim of “hostile work environment” sexual harassment is a form of sexual discrimination prohibited by Title VII.

And Congress certainly did not concern itself with sex harassment against men perpetrated by other men as being discrimination because of sex, but in Oncale v. Sundowner Offshore Services, the Supreme Court—in an opinion penned by Antonin Scalia, no less—extended Title VII’s reach to prohibit sexual discrimination of men by men: “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 

Scalia’s logic applies to hair discrimination: Congress may not have meant for Title VII to reach hair discrimination, but that doesn’t mean that courts cannot interpret the law to prohibit discriminatory grooming policies.

Employer grooming policies like CMS’, which exclude Black hairstyles because they are “unprofessional” or “messy” or “not neat,” are simply an expression of biases to which white America clings when it comes to Black women’s hair.

So when CMS says that its policy barring “extreme” or “messy” hairstyles bars dreadlocks, it is simply expressing a bias toward hairstyles that are more consistent with white texture than Black texture.

In this Black woman’s opinion, white people have grown so used to Black women sporting straight hair, either through chemicals, scorching heat, or wigs, that they simply don’t understand how our hair works or why we would want to twist it, braid it, lock it, or knot it. And when we do style our hair in traditionally Black hairstyles, white people like to tell us that our hair is “fun” or “interesting” or they dig their hands in our hair, as if our scalp might contain all the answers to the mysteries of the universe. 

And that’s if they’re being nice.

Far too often, though, the conversations aren’t nice.

Indeed, the Perception Institute published a study in February demonstrating that on average, white women showed explicit bias toward Black women’s textured hair, rating it “less beautiful, less sexy/attractive, and less professional than smooth hair.” The study also found that Black women “perceive a level of social stigma against textured hair, and this perception is substantiated by white women’s devaluation of natural hairstyles.”

In 2007, when Ashley Baker, an editor from Glamour magazine, met with a group of lawyers at Cleary Gottlieb Steen & Hamilton, a prestigious law firm in Manhattan, to discuss the dos and don’ts of corporate fashion, she laid bare for everyone to see the sort of discrimination and biases that white people have about Black women’s hair. Baker showed a slide of a Black woman wearing an Afro with accompanying text that read “Just say no to the ‘fro.” She went on to say that dreadlocks were “truly dreadful,” and that she found it “shocking” that some people still think it’s “appropriate” to wear those hairstyles at the office. “No offense,” she said, but those “political” hairstyles really have to go. 

Research and history tell us that some white people believe the only appropriate and non-political hairstyles are hairstyles that approximate whiteness.

Fortunately, Cleary Gottlieb ignored Baker. If the law firm had followed Baker’s advice and banned Afro hair styles, that would likely have violated Title VII.

In 1981 in Rogers v. American Airlines, a federal court in New York tossed out the lawsuit of Renee Rogers, a flight attendant. The court ruled that a neutral employer policy against women wearing braids or cornrows was not a race-based distinction, and thus such a policy would violate Title VII only if it had a disparate impact on Black women and was not job-related and consistent with business necessity, or if the policy were applied in a discriminatory manner. 

The court also stated in dicta that an employer policy banning Afro hairstyles likely would be a race-based distinction in violation of Title VII because, unlike braids or cornrows, an Afro is the product of natural hair growth rather than artifice. In a statement tone deaf enough to make any Black woman shake her head in disgust, one of the reasons the court gave for finding that American’s prohibition of braided hairstyles did not discriminate against Rogers as a woman in general and as a Black woman in particular is that the flight attendant did not begin wearing braided hair until after Bo Derek popularized cornrows in the 1979 film 10. 

Setting aside the fact that the court attributed a hairstyle worn by Black people for hundreds of years to a blonde white woman, the myriad ways of styling Black women’s hair are not artifice. These styles are part of a long African tradition that was purposefully stripped from us in order to dilute our individuality and identities. And for many Black women, these hairstyles have become integral parts of our identities.

What’s the Big Deal?

You may think this is much ado about nothing. But the way Black women present ourselves, including how we choose to style our hair, in the workplace can be a source of constant concern. You’d be hard-pressed to find a Black woman who has not agonized over her hair, whether it’s wanting a relaxer to have straight hair like the white girls at middle school (that was me at 12 years old) or whether it’s becoming frustrated by trying to maintain straightened hair in humid or wet climates (that was me at 22 when I finally went natural by cutting off all my hair, because it was too damn humid in Washington, D.C.) And then once we enter the workplace, a new set of hair concerns arise.

As I wrote in an article about whether “lean in” feminism resonates with Black women and the ways in which Black women “shift”—a term coined by Charisse Jones and Kumea Shorter-Gooden to describe “a sort of subterfuge that African Americans have long practiced to ensure their survival in our society”:

To be a Black professional woman in a white-centric corporate space is to be constantly aware of how you fit in—or don’t—and to be constantly battling the preconceptions that your white colleagues have about your character and capabilities due to the pervasive negative stereotypes about Black women…. Every time [a Black woman] chooses to relax (chemically straighten) her hair rather than wear her hair in a natural style because natural hairstyles (twists, cornrows, braids, or dreadlocks) are viewed as “wild,” “extreme,” or “political,” she is shifting.

But it doesn’t have to be this way.

The 11th Circuit believed itself bound by what the “country’s collective zeitgeist was when Congress enacted Title VII half a century ago.” But why? The EEOC even provided guidance to the courts, a way forward when it comes to grooming policies that will allow Black women to express their individuality—as our ancestors did—without upending Title VII entirely.

In 2006, the EEOC included guidance in its Compliance Manual for employers who want to avoid Title VII claims based on their grooming policies. According to the EEOC, Title VII permits employers to impose neutral hairstyle rules, but those rules must respect racial differences in hair texture. In addition, Title VII “prohibits employers from applying neutral hairstyle rules more restrictively to hairstyles worn by African Americans.”

By banning dreadlocks, CMS has done what the EEOC says it cannot do: Apply neutral hairstyle rules to a hairstyle—dreadlocks—worn by Black people.

Unfortunately, federal courts are not bound by the EEOC manual nor by their interpretations of their own regulations. So for now, the EEOC’s guidance remains that—guidance.

Until the courts acknowledge hair discrimination as unconstitutional under Title VII, employers with grooming policies should consider why they’ve adopted such policies in the first place, and whether they understand the challenges of such policies for Black women. And for Black women confronting such policies, Los Angeles attorney Tracy Sanders encourages you to know your rights so that you understand which laws might apply to your situation.