How the “Dreadlock Ban” could be reversed
In some interesting news this week, the 11th district found that employers who had grooming policies regarding hair could not be found liable for racial discrimination. Understandably, the ruling has been met with social outrage, most believing it now gives employers the license to discriminate against minorities due to their hair. Fortunately, it’s not that simple, and the court’s opinion left a new wrinkle to potentially explore. But let’s start with a quick overview of the case.
On behalf of Ms. Jones, the EEOC filed a racial discrimination suit against Catastrophe Management Solutions. To prove this, the EEOC was tasked with establishing a prima facie through disparate treatment. A prima facie are the elements needed for a plaintiff to meet their burden of proof for establishing the case. Once that is met, the burden of proof then shifts to the defendant to make a defense on those claims. The main element needed for the EEOC to reach that burden of proof, was proof that Catastrophe Management Solutions (CMS) created a policy with the intention of discriminating on a race. This would violate Title VII of the Civil Rights Act of 1964 since race is a protected class. However, the protections cover only “immutable” characteristics of the protected classes.
EEOC claimed that dreadlocks were a part of the African-American culture engraved since the time of slavery. Therefore, any policy rejecting employees with dreadlocks would be discriminating against a“racial characteristic.” The courts had several problems with this, I’ll just bullet them below, but a more expansive view can be seen here:
- Dreadlocks are not “immutable” characteristics.
- EEOC erred in interchanging Disparate treatment information with Disparate impact information. Disparate treatment (which they were tasked with proving), required an employer to knowingly discriminate. Disparate impact did not.
- EEOC previously stated that grooming policies were out of the scope of federal statue, contradicting the claim they were making now. Hard to argue something you had previously said isn’t in the reach of the courts that govern you.
- In determining that that dreadlocks were a “racial characteristic,” the EEOC relied on its own compliance handbook. Since the handbook was not a binding authority in court, the judges could only use it as a possible persuasive document. This went out the window due to the EEOC’s contradictory stance discussed above.
An interesting issue that the courts grappled with was the idea of race. Title VII never actually gives a definition for race, and because of that the courts were unsure of whether they could add culture as one of the elements that went with race. In grappling with this question of what constitutes race, the courts openly asked the legislative branch to create a clear contemporary definition of race, to create a clearer precedent.
This interpretation could be an issue attacked by racial injustice groups in lobbying efforts. Race is still an iffy term with very different definitions depending on who you ask. But a chance to have a say in how the government defines race in terms of racial discrimination could be a huge win for minorities. Being able to add a culture element of race could provide the EEOC with the ability to protect things such as dreadlocks, clothing, and other mutable characteristics that cultures of a certain race hold close to them. The ruling last week is disappointing, but it doesn’t have to be the end of the issue. With a persistent effort, the ruling in EEOC v. Catastrophe Management Solutions will only be a footnote to a new precedent for how race is defined. Of course change doesn’t happen quickly, and even if culture was integrated, determining which cultural practices are protected for which races could lead to some confusing court opinions. Regardless, that shouldn’t be a reason to fear a broad definition, and it would definitely be better than having minorities lose job opportunities because of the look of their hair.