The U.S. Supreme Court Decided to Ignore Black Hair Discrimination

Black women may continue to be discriminated against even though having traditionally Black hairstyles has no bearing on a person’s fitness for a particular job.

[Photo: Black businessperson with dreads looks away]
Black women should not be forced to divest themselves of their racial cultural identity in order to obtain or maintain a job in predominantly white corporate spaces. Shutterstock

Black hair discrimination in the workplace is real, and the U.S. Supreme Court just rejected an opportunity to address it.

On Monday, the Court refused to consider a lawsuit against Catastrophe Management Systems (CMS) alleging that Chastity Jones, a Black woman, suffered racial discrimination when CMS rescinded a job offer because Jones wouldn’t cut off her dreadlocks.

The facts of the case, as outlined in court documents, are these: In 2010, Jones interviewed for a customer service representative job at CMS after being selected from a pool of online applicants. She arrived for the interview wearing her hair in short dreadlocks. After Jones was offered the job, the company’s HR manager, Jeannie Wilson, told Jones that CMS could not hire her “with the dreadlocks.” When Jones asked her 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. Jones declined to change her hair.

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

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Jones, alleging that CMS had subjected her to racial discrimination in violation of the Title VII of the Civil Rights Act of 1964. 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. Instead, the EEOC alleged that race can also 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.”

U.S. District Court Judge Charles R. Butler Jr. disagreed in 2014 and dismissed the lawsuit. The EEOC appealed.

In 2016, a unanimous three-judge panel of the 11th Circuit Court of Appeals upheld the district court ruling dismissing the case, stating that the EEOC “did not state a plausible claim that CMS intentionally discriminated against Ms. Jones because of her race.”

The EEOC asked for a rehearing en banc, which the 11th Circuit denied in December 2017. In its denial, the 11th Circuit agreed with the three-judge panel: “[D]ismissing the complaint was the correct legal call. Under our precedent, banning dreadlocks in the workplace under a race-neutral grooming policy—without more—does not constitute intentional race-based discrimination.”

After losing the appeal, the EEOC decided not to take the case to the Supreme Court. It is unclear why: Perhaps the EEOC thought it had no chance of success, or perhaps personnel changes at the EEOC made the agency under Trump more hostile to Jones’ claims than it was under Obama. And because of a procedural quirk in the way the lawsuit was brought—the EEOC was the plaintiff and not Jones herself—Jones could not herself appeal to the Supreme Court. So that Jones could continue to vindicate her civil rights claims, the NAACP Legal Defense and Education Fund (LDF) filed a motion with the Court earlier this year asking that Jones be allowed to intervene and appeal the case to the Supreme Court. (A motion to intervene asks a court to allow a nonparty to the lawsuit to join the lawsuit without permission of the original plaintiff or the defendants.)

The Supreme Court refused, thus permitting employers like CMS to ban most, if not all, natural hairstyles.

First, CMS’s purported race-neutral grooming policy is anything but—since it excludes Black women’s natural hairstyles based on stereotypes that natural hairstyles are unprofessional, messy, not neat, political, radical, too eye-catching, or excessive.

Second, the 11th Circuit ruled against the EEOC based on antiquated and incorrect notions about race being a biological imperative rather than a social construct, which led to a hopelessly confused decision wherein the court tried to differentiate between racial characteristics that are immutable—hair texture—and those that are not—hair styles. The court ignored that Black women should not be forced to divest themselves of their racial cultural identity in order to obtain or maintain a job in predominantly white corporate spaces. In other words, it ignored the fact that hair styles are often not race-neutral.

Third, as LDF noted in a statement in April when it filed the Supreme Court petition:

[The 11th Circuit’s] analysis contradicts Supreme Court precedent established in its seminal 1989 decision Price Waterhouse v. Hopkins, which ruled that Title VII prohibits discrimination based on stereotypes, regardless of whether the stereotype focuses on mutable or immutable traits. Every appellate court that has considered a similar legal question has consistently followed the Supreme Court’s guidance in Price Waterhouse.  The Seventh Circuit, based in Chicago, even held that Title VII bars an employer from taking a negative employment action against a Black employee because she wore her hair in an afro.

But there’s another important issue at play here: the Court’s decision not to allow Jones to intervene. This is a matter of procedural injustice. As LDF writer-in-residence Christian Farias noted on Twitter, “If the federal government represents you in the lower courts but leaves you stranded on appeal, why shouldn’t you be allowed to intervene? That matters.”

Let me explain further what Farias means: The EEOC is a federal governmental agency that represented Jones in district court and in the 11th Circuit. When the EEOC decided not to purse the case any further, Jones was left with no recourse but to ask if she could intervene. Since she is not a plaintiff in the case—again, the EEOC is the plaintiff—she has no right to appeal the case herself without the Court’s permission. But she is the subject of the lawsuit, and it is her civil rights that are at issue in the lawsuit. In addition, as Farias pointed out on Twitter, many workers cannot afford to pursue these lawsuits on their own because they cannot afford counsel, so they rely on the EEOC to vindicate their interests. As such, the Supreme Court could have—and should have—granted her that permission by allowing her to intervene. As Sherrilyn Iffill, president and director-counsel of LDF, pointed out in a statement yesterday, by denying Jones the chance to intervene, the Court “halt[ed] a critical opportunity to address employment discrimination.” So far, no court case has been decided in favor of letting Black people wear dreadlocks in any circuit.

So for now, Black women may continue to be discriminated against even though having traditionally Black hairstyles has no bearing on a person’s fitness for a particular job. And Black women will continue to be excluded from the workplace entirely, or forced to conform to white hair standards (as I wrote about here).

Either way, Black women will continue to be expected to change the way their hair grows out of their heads naturally—for example, by straightening it using harsh chemicals—in a way that white women are not. And ultimately, that’s just not fair.