In recent years, the Equal Employment Opportunity Commission has attempted to expand the definition of race under Title VII. The agency takes the position that race includes cultural characteristics and individual expressions associated with one’s race. Therefore according to this theory, discrimination on the basis of these characteristics is tantamount to race discrimination. Last month, the Eleventh Circuit Court of Appeals rejected this argument, concluding that requiring an employee to remove her dreadlocks was not a direct form of race discrimination.
In EEOC v. Catastrophe Mgmt. Solutions, the employer refused to hire the plaintiff on the basis that her hairstyle violated its otherwise neutral dress code. Rather than pursuing the typical disparate impact theory, the EEOC attempted to claim that the policy constituted disparate treatment because it prohibited a cultural characteristic typically associated with black persons. The Eleventh Circuit disagreed, concluding that dreadlocks are not an immutable characteristic associated with race, but rather constitute an individual grooming choice.
If followed by other courts, this decision paves the way for employers to enforce neutrally drafted grooming and appearance policies. The Eleventh Circuit made clear its view that expansion of Title VII to the EEOC’s more “modern” view of cultural associations will require amendments to the underlying statute. Only immutable characteristics of race fall within the current meaning of race discrimination under Title VII. Plaintiffs still have the option of alleging disparate impact, but the statistical and other impediments to these claims make them more difficult to pursue and prevail upon.