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Kinky Hair: A License to Discriminate?

Can schools and employers discriminate against black people because of their hairstyle?

The recent story of DeAndre Arnold, a black high school student with locks, being propositioned to cut his locks or forfeit walking in his graduation has reinvigorated questions about natural black hair, ideas of professionalism, and acceptable grooming standards. Many are asking, why aren’t black people allowed to wear their hair the way it grows from their heads—kinky, full, and free.

Natural Hair: A Politicized Topic?

“Why aren’t black people allowed to wear their hair the way it grows from their heads—kinky, full, and free?”

The expectation of hair assimilation dates back to the enslavement of black people—where black people had to straighten their hair chemically with relaxers, hot combs, or a combination of products to “control” the natural characteristics of black hair. These expectations have continued in schools, workplaces, and other professional settings—forcing black people to sometimes choose between professional advancement and freedom of hairstyle choice.

In 2017, in EEOC v. CMS, the 11th circuit, agreeing with the district court, dismissed a case, finding that race-neutral grooming policies (i.e. prohibition against locks) is not race-based discrimination. In this case, a black woman with locks interviewed and was offered a position as a customer service representative. Then, the human resources manager said that she would not be hired because of her locks.

Natural Black Hair

The Eleventh Circuit reasoned, “A hairstyle is not inevitable and immutable just because it is a reasonable result of hair texture, which is an immutable characteristic.” “Title VII does not protect against discrimination based on traits, even a trait that has socio-cultural racial significance.” Essentially, the Court said that hair can be changed, as compared to other classifications like race, and because it can be changed no Title VII protection exists.

However, attorneys and other advocates believe that the Court’s analysis improperly applies the Price Waterhouse v. Hopkins case. The Hopkins case prohibits discrimination based on stereotypes and the immutability of a trait is immaterial. The rationale behind the rescinded job offer was rooted in stereotype—the employer said locks were messy and rescinded the job offer based on their policy against “excessive hairstyles.” Labeling black hairstyles as “excessive” is problematic because it implies that the traits of white hair (i.e. straightness) are the benchmark to assess other hair textures. It also fails to acknowledge that race is a social construct.

Ultimately, the EEOC declined to appeal the case to the United States Supreme Court. The NAACP Legal Defense Fund motioned to intervene on the complainant’s behalf, but their motion was denied in 2017.

Although the United States Supreme Court has not yet addressed the issue, many states have begun to pass laws to prohibit hair-based discrimination. In July 2019, California became the first state to pass a law prohibiting discrimination against black employees and students based on natural hairstyles called The Crown Act. Shortly thereafter, New York passed a similar law. In December 2019, New Jersey became the third state to pass an anti-discrimination law based on hairstyle.

Get to the Point: The United States Supreme Court has not yet addressed the issue of whether discrimination based on hair texture is considered an actionable race discrimination claim. In states without state laws prohibiting hair discrimination, employers and entities may not suffer legal liability if their policies are framed as "neutral" grooming policies. But just because the United States Supreme Court has not yet addressed it, does not mean it won’t in the future. #AskAngie #CivilRightsLaw #AngelikEdmonds #hairdiscrimination

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