Civil Rights, Current Events, Employment Discrimination

Is Your Job’s Dress Code Racist?

Does your employer have a racist or discriminatory dress code? Perhaps you were told that your hair violates dress code policies. Or, your employer is requiring that you shave your beard or not dress a certain way. Read on to find if your employer’s dress code policy is racist or discriminatory and which laws protect you.

If 100 people were asked to make a list of “Reasons Why a Co-Worker Should be Fired or Disciplined,” violations of the office’s dress code would likely be ranked low, if they made the list at all.   Nevertheless, Black workers – particularly Black women – are often told that their hair violates workplace dress codes.

Though some might think bias against Black hair is a relic from a bygone era, it is alive and well in the present.  In 2010, Chastity Jones applied to work as a customer service representative at Catastrophe Management Solutions, an Alabama insurance company.  She wore curly blonde dreadlocks to her job interview.  Though she was offered a job, Ms. Jones was told that she would have to cut her hair before training.  When she refused, Catastrophe revoked the job offer.  Ms. Jones filed a complaint with the Equal Employment Opportunity Commission (EEOC), which filed suit on her behalf in 2013.  The federal courts ruled that Catastrophe’s dress code did not violate federal employment discrimination laws.  Last month, Jones requested a hearing before the United States Supreme Court.

Ms. Jones is not alone.  While statistics on the number of African Americans affected by discriminatory dress codes are difficult to find, studies have found that there is a bias against natural Black hair.  A study by the Perception Institute found that while people of all races harbored some implicit bias against natural hairstyles, white women and white men were most likely to reveal unconscious prejudice against such styles.  Perhaps Black women’s awareness of this bias is what led twenty percent of the Black women in the study to report that they felt pressure to straighten their hair for work.

Employment discrimination is governed by Title VII of the Civil Rights Act of 1964 (“Title VII”).   Though Title VII is over fifty years old, it has done little to prevent discrimination against Black hair.  Despite the existence of Title VII, Black women with braids, cornrows, twists, and dreadlocks have faced unfavorable treatment at work.  The hostility is not limited to natural hair.  Black women with straight blonde hair, finger waves, and even ponytails have been disciplined.

D. Wendy Greene, Professor of Law at Samford University and Visiting Scholar at the University of California, Irvine’s Center on Law, Equity, and Race is one of the nation’s leading scholars on how the law applies to Black hair. In an effort to better understand how the law applies to Black hair, I reached out to Professor Greene for an interview. (Her responses have been edited for length and clarity.)

Interview with Professor D. Wendy Greene on Workplace Dress Code Discrimination

Professor D. Wendy Greene. You can read more about Professor Greene’s work on dress codes here.

 

1. Can you briefly explain how Title VII applies to workplace dress codes?

Title VII’s prohibitions against discrimination based on race, color, sex, national origin, or religion.do not expressly contemplate that workplace dress codes will violate the Act. Therefore, federal courts are charged with interpreting Title VII and determining under what circumstances a grooming policy amounts to unlawful discrimination. Generally, federal judges have found workplace grooming policies do not violate Title VII and other federal anti-discrimination laws. As a result, employers hold significant power to implement them without the prospect of judicial oversight.

Employers can violate Title VII if there is evidence that they were consciously motivated by biases, stereotypes, or animus related to race when implementing or enforcing a grooming policy. Employers can also violate Title VII if they enforce a specific grooming or appearance standard differently because of one’s race.

 

2. In your opinion, was the Catastrophe Management case correctly decided? Why or why not?

There are a number of reasons why I disagree with the decision in Catastrophe Management Solutions, but I will simply provide a few.

Much of my scholarship and advocacy have critiqued federal court decisions that fail to treat workplace bans against African descendants’ natural hairstyles or even hair color as race discrimination largely due to their application of an outdated, judicially created rule known as the “immutability doctrine.”

The immutability doctrine embraces a biological notion of race and a flawed understanding of hair. Federal judges have ruled that anti-discrimination laws only protect individuals against discrimination based upon characteristics that are fixed or difficult to change, traits with which one is born, or features that only individuals who share a racial identity possess.

Using this logic, the court in Catastrophe Management is the most recent federal court to declare that afros are an “immutable racial characteristic” of African descendants, yet the styling or growth of afro-textured hair into twists, locks, or braids are “mutable, cultural characteristics.” This literal hair-splitting distinction creates an unjustifiable outcome: if an employer denies an African descendant a job because she adorns an Afro, the employer engages in unlawful race discrimination and violates Title VII; however, the moment she twists, locks, or braids her Afro and suffers adverse treatment on those grounds, the employer’s discrimination is deemed lawful and the African descendant woman is deprived of statutory protection.

By fortifying the immutability doctrine, the decision in Catastrophe Management Solutions gives employers an unfettered right to ban African descendant’s natural hairstyles except for afros.  The ruling affects both African descendant women and men and their ability to wear their natural hair freely or to freely wear their hair as they deem fit. However, the consequences are markedly different for women than men.

Workplace bans against natural hairstyles like locs, braids, and twists effectively require Black women to cut off or cover their hair and/or don straightened hairstyles. For many Black women, complying with what I have called a “straight hair mandate or expectation”—either through chemical relaxers, heat, wigs, or weaves—comes with real costs and burdens of which many employers are not aware. The maintenance of straightened hairstyles is often more expensive and time-consuming than maintaining natural hairstyles. Additionally, these methods to achieve straightened hairstyles can cause temporary or permanent damage to one’s hair and scalp, which engenders emotional and physical harms and additional economic costs to repair the harm.  Black women also suffer heightened levels of anxiety and stress trying to comply with formal or informal straight hair expectations. And, because of the expense, time, and consequence of maintaining straightened hair, many Black women disengage in physical activities, like exercising, when donning straight hair.

Medical research also indicates chemicals in hair products that Black women frequently use, like chemical relaxers, may potentially be the source of higher rates of hormone-related infertility, uterine fibroids, and more aggressive forms of breast cancer and uterine cancer amongst Black women. The Catastrophe Management Solutions decision further entrenches a precarious Catch-22 in which many African descendant women already find themselves: don your natural hair at the risk of lawfully being deprived of an employment opportunity and attendant compensation or don straight hair at the risk of enduring consequential harms to your economic, psychological, physical, and physiological well-being.

 

3. Can you give some examples of cases involving Black men’s hair and facial grooming where dress code discrimination was an issue?

Black men have challenged private employers’ grooming policies that ban beards or facial hair. They have argued that these grooming policies violate federal prohibitions against race discrimination because they disproportionately impact Black men.

African descendant men are more likely to suffer from a skin condition called pseudo folliculitis barbae or PFB. Shaving for many Black men triggers PFB or skin irritation, inflammation, and painful razor bumps, which can also produce scarring. Consequently, Black men have successfully contested no facial hair policies under Title VII when an employer is unable to demonstrate that the policy is job-related and consistent with business necessity.

In addition to Title VII race discrimination claims, a Black male plaintiff who suffered from PFB challenged a series of adverse employment actions under the Americans with Disabilities Act (ADA) because he sought a medical accommodation from a no beard policy and refused to cut off his beard because of his medical condition. Recently, the federal district court granted a jury trial on both Title VII and ADA claims.

Like Black women, Black men have opposed private employers’ bans against locs under Title VII, yet federal courts have not ruled in their favor. However, some federal cases challenging bans against facial hair and locs on religious grounds have resulted in favorable settlements for plaintiffs.

 

4.  If the current federal law does not fully protect Black employees, what is the best course of action for a person who feels she has suffered discrimination?

While federal courts’ use of the immutability doctrine does not fully protect individuals from race-based grooming codes discrimination, federal law is not an employee’s only recourse. They can challenge discriminatory grooming regulations under state or local anti-discrimination law. State courts and administrative law judges have interpreted state and local laws more broadly to recognize natural hair bans and other hair regulations as unlawful race discrimination.

Additionally, there are a handful of states and localities that have enacted legislation specifically prohibiting appearance discrimination. Though under-utilized, employees may opt to seek legal recourse via these statutes.

Lastly, depending on the nature of the employment relationship, employees can possibly engage in a constructive dialogue with supervisors or human resources professionals responsible for implementing and enforcing natural hairstyle bans or other discriminatory grooming mandates so that they can better appreciate the real impact of these policies, which are often driven by stereotypes, bias, or lack of knowledge, and do not bear any correlation to one’s ability to effectively perform his or her job. Educating those who make or enforce grooming policies about the burdens and costs of compliance can possibly prevent the implementation of unnecessary grooming regulations or dismantle existing ones.

You can read more about Professor Greene’s work here.

If you believe that you have experienced employment discrimination, search the membership directory African American Attorney Network to find an experienced attorney in your area.