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Full Eleventh Circuit Declines to Revisit Meaning of Race Under Title VII

    Client Alerts
  • December 15, 2017

Title VII of the Civil Rights Act of 1964 prohibits race discrimination in employment, but it does not define what race means. Over the past decade, the Equal Employment Opportunity Commission has shifted its definition of race to include cultural characteristics associated with, but not necessarily exclusive to, a particular race. Earlier this month, the full Eleventh Circuit Court of Appeals refused to revisit a panel decision concluding that these mutable racial characteristics cannot form the basis of a claim of discrimination under Title VII. 

In EEOC v. Catastrophe Management Solutions, the commission alleged that the defendant withdrew an offer of employment to an African-American applicant because she wore dreadlocks. The EEOC contended that dreadlocks are a hairstyle associated with African-Americans, and therefore a policy prohibiting employees from wearing this style constituted disparate treatment based on race. In September 2016, an Eleventh Circuit panel concluded that the complaint did not state a plausible claim of discrimination under Title VII because dreadlocks are not an immutable racial characteristic. African-Americans may choose to wear or not wear dreadlocks, and people of other races can also adopt the style.

The EEOC appealed this decision to the full Eleventh Circuit, seeking an en banc review. A divided court rejected this petition, leaving the panel decision in place. The EEOC argued that race is a social construct, and that its meaning under Title VII is not limited to biological traits. Because dreadlocks are closely associated with African-American hair and styles, prohibiting them constituted intentional discrimination on the basis of race.

The full Eleventh Circuit disagreed, with a concurring opinion stating that an attempt to expand the meaning of race under Title VII from biological to cultural characteristics would require a statutory amendment. Several dissenting judges stated that this opinion contradicts the U.S. Supreme Court’s Price Waterhouse decision, which found gender stereotypes (a non-biological characteristic) to fall within the definition of sex discrimination under title VII.

The EEOC may appeal this decision to the Supreme Court for a final determination on the meaning of race under Title VII. Employers with workplace policies that impact persons of one race or national origin category should not take much comfort in this decision. Both the Eleventh Circuit concurrence and dissent agreed that the employer’s policy in this case could have been challenged under a disparate impact theory had the EEOC chosen to pursue this legal route.