Bias, Employment Discrimination, and Black Women's Hair: Another Way Forward

BYU Law Review BYU Law Review

Volume 2018 Issue 4 Article 7

Winter 2-28-2019

Bias, Employment Discrimination, and Black Women's Hair: Bias, Employment Discrimination, and Black Women's Hair:

Another Way Forward Another Way Forward

Crystal Powell

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Crystal Powell,

Bias, Employment Discrimination, and Black Women's Hair: Another Way Forward

, 2018

BYU L. Rev. 933 (2019).

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933

Bias, Employment Discrimination, and

Black Women’s Hair: Another Way Forward

CONTENTS

I. INTRODUCTION .......................................................................................... 933

II. HISTORY OF BLACK HAIR, IMPLICIT BIAS, AND WORKPLACE

GROOMING STANDARDS ..................................................................... 937

A. History of Black Hair Texture and Hairstyle: Centuries of

Stereotyping ...................................................................................... 938

B. Clean, Neat, and Kept Versus Extreme, Eye-Catching, and

Unprofessional: Workplace Grooming Policies Reflect

Racial Stereotypes ............................................................................. 943

III. SHOULD BLACK WOMEN GIVE UP ON TITLE VII?....................................... 946

A. Forty Years of Loss: Title VII, the EEOC, and Black Hair ................... 946

1. Title VII and the EEOC guidelines ............................................... 946

2. Cases and commentaries on Black hair discrimination:

unequal treatment and disparate impact .................................. 949

B. Crafting a New Jurisprudence Based on Undue Burden .................... 962

IV. STATE EMPLOYMENT DISCRIMINATION PROTECTION: TOWARD A

HIGHER STANDARD ........................................................................... 965

V. CONCLUSION ............................................................................................ 967

I. INTRODUCTION

In 2016, the Eleventh Circuit decided that, professionally, Black

women’s natural hairstyles could legally be limited to only the afro.

Black women

may change their hair texture to make it straight,

1. See EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1030 (11th Cir. 2016). An afro

is a hairstyle where the hair is combed up and out forming a cloud or ball around the head.

See Afro, WIKIPEDIA, https://en.wikipedia.org/wiki/Afro (last visited Jan. 1, 2019). It is

typically worn by African/Black women with a more tightly curled texture and generally

short to medium length or very recoiled hair. Id.

2. In this Note, I use the term Black women as a preference to refer to women of African

descent, whether termed African American or otherwise. I also use the term Black hair to refer

to the hair of Black women as a simpler designation and not about hair color.

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wear a weave, or wear a wig.

However, every other hairstyle

involving Black women’s natural texture (outside the afro) may be

banned.

The decision was neither new nor groundbreaking. For

almost forty years, federal courts have consistently ruled that when

an employer chooses to hire or fire a Black woman for wearing her

hair in a braid, twist, plait, cornrow, lock, or blonde, Title VII of the

Civil Rights Act

—meant to protect individuals against employ-

ment discrimination on the basis of race—does not apply.

The 2016 decision in EEOC v. Catastrophe Management Solutions

reinforced the long precedent that the micromanagement of Black

women in the workplace is quite all right.

In that case, the Equal

Employment Opportunity Commission (EEOC) brought an action

alleging that Catastrophe Management had engaged in race

discrimination in violation of Title VII when it rescinded an offer of

employment pursuant to its race-neutral grooming policy when the

applicant refused to cut off her dreadlocks. The decision resulted in

placing an undue burden on Black women because it allowed

grooming policies to permit the disparate treatment of, as well as

to have a disparate impact on, Black women. Ordinarily race-based

discrimination suits are argued under either a disparate treatment

or a disparate impact analysis keying in on the fundamental

unfairness in opportunities to individuals who are identified as a

particular race; while sex-based employment discrimination tends

to focus on the undue burden that is placed on one sex (or gender)

in accessing opportunities available. Because Black women do not

neatly fit into the categories of race and sex, Black women have

continued to fall between the cracks of civil rights as it pertains to

hair grooming policies.

3. See, e.g., Rogers v. Am. Airlines, Inc., 527 F. Supp. 229, 233 (S.D.N.Y. 1981). The

court in Rogers discussed how the plaintiff could cover her hair with a hair piece (a wig)

in order to conform to the grooming policy. Previously she had worn her hair in braids.

Renee Rogers filed an action challenging a rule prohibiting employees in certain employment

categories from wearing an all-braided hairstyle. Rogers worked as an airport operations

agent, where she interacted heavily with passengers from issuing tickets, checking in, and

helping with boarding.

4. See Catastrophe Mgmt. Sols., 852 F.3d at 1030.

5. Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000a-2000ff (2012) (protecting

against discrimination on the basis of race, color, sex, religion, and national origin).

6. Rogers, 527 F. Supp. at 232–33.

7. See, e.g., id. at 233.

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933 Black Women’s Hair: Another Way Forward

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Catastrophe Management also announced that racial discrimi-

nation had to be on characteristics that did not change and not on

characteristics that are only important because of one’s race. This,

despite a long line of scholarship dissecting and criticizing the

decades-old precedent first rolled out in Rogers v. American

Airlines.

Indeed, prolific and accomplished legal scholars have

written extensively on the fundamental error in Rogers, yet federal

courts routinely apply the standard without regard to the fact that

racism against Black women is intersectional, precisely because

they do not fit neatly into one box (of either race or sex), and that

this reality might warrant a more nuanced standard.

Indeed, the

8. See infra Part III.

9. See generally Dawn D. Bennett-Alexander & Linda F. Harrison, My Hair Is Not Like

Yours: Workplace Hair Grooming Policies for African American Women as Racial Stereotyping in

Violation of Title VII, 22 CARDOZO J.L. & GENDER 437, 463 (2016) (exploring how workplace

discrimination based on grooming policies disproportionately impacts Black women);

Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991

DUKE L.J. 365, 396 (1991) (a foundational article discussing the fundamental error in the

Rogers decision in failing to understand the ethnic significance of Black hair to Black women

and the racial underpinnings in hair grooming policies that disfavor and punish Black

hairstyles); Bridget J. Crawford, The Currency of White Women’s Hair in a Down Economy,

32 WOMEN’S RTS. L. REP. 45, 55 (2010) (analyzing how a bad economy affects Black women

more negatively than White women as Black women have an extra burden in grooming their

hair to societal expectations); D. Wendy Greene, A Multidimensional Analysis of What Not to

Wear in the Workplace: Hijabs and Natural Hair, 8 FLA. INT’L U. L. REV. 333, 368 (2013) (Chal-

lenging “a relatively universal judicial and societal assumption that employers’ enactment

and enforcement of grooming codes are inconsequential to women’s access to, and inclusion

in, American workplaces.”); D. Wendy Greene, Black Women Can’t Have Blonde Hair . . . in the

Workplace, 14 J. GENDER RACE & JUST. 405, 430 (2011) (discussing the hypocrisy of the juris-

prudence in ruling that it was not racially discriminatory for an employer to discriminate

against a Black employee who dyed her hair blonde, while other White employees donned

blonde hair); D. Wendy Greene, Splitting Hairs: The Eleventh Circuit’s Take on Workplace Bans

Against Black Women’s Natural Hair in EEOC v. Catastrophe Management Solutions, 71 U.

MIAMI L. REV. 987, 991 (2017) [hereinafter Splitting Hairs] (discussing how the federal courts

have issued “hair splitting” in race-based grooming codes discrimination cases to highlight

the extreme micromanagement of Black women in the workplace and indignity it brings to

Black women); D. Wendy Greene, Title VII: What’s Hair (and Other Race-Based Characteristics)

Got to Do with It?, 79 U. COLO. L. REV. 1355, 1394 (2008) (asserting that “courts have hindered

the efficacy if Title VII to achieve its mandate to ensure that individuals are not denied equal

employment opportunities on the basis of race, national origin, and color”); Melissa Hart,

Subjective Decisionmaking and Unconscious Discrimination, 56 ALA. L. REV. 741 (2005) (analyz-

ing how easy it is for discriminatory practices to stem not from overt racism but unconscious

biases based in racist and racially discriminatory stereotypes); Angela Onwuachi-Willig,

Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 GEO. L.J. 1079, 1132

(2010) [hereinafter Another Hair Piece] (adding to the discussion of the original Hair Piece by

examining the sociological and psychological biases in the workplace between good hair as

White Hair and Black hair as bad hair and the disparate impact on Black women to achieve

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jurisprudence around Black women’s hair becomes unique when

viewed even in the broader arena of race-based discrimination. To

illustrate, while the U.S. Supreme Court has been more nuanced in

its treatment of race,

lower courts have not followed suit in seek-

ing to understand and protect against hair-based discrimination as

one of the distinctive racial identifiers for Black women. Following

Catastrophe Management, one might not be blamed for adapting a

dystopian view toward the prospects for legal and social change in

relation to workplace bans on Black hair. It was hoped that the

Supreme Court would utilize the opportunity to address the evolu-

tion of Black hair discrimination litigation at the appellate level

when Catastrophe Management was appealed to the Court. However,

the EEOC withdrew the case and the Court disallowed Jones from

intervening in the matter so she could pursue the case on her own

behalf and protect her legal interests.

This Note explores a very simple question: after forty years of

failure in fighting discriminatory employment practices against

Black women, why have federal courts tolerated regulation of Black

hair in ways that ignore that those regulations may be pretext for

discrimination against Black people in general and Black women in

particular? That regulating Black hairstyles creates unequal

good hair that is brought about by discriminatory workplace grooming policies); Janee T.

Prince, “Can I Touch Your Hair?”: Exploring Double Binds and the Black Tax in Law School, 20 U.

PA. J.L. & SOC. CHANGE 29, 50 (2017) (examining how Black hair affects Black lawyers from

the beginning of their legal careers in law school); Ashleigh Shelby Rosette & Tracy L.

Dumas, The Hair Dilemma: Conform to Mainstream Expectations or Emphasize Racial Identity, 14

DUKE J. GENDER L. & POL’Y 407, 422 (2007); Terry Smith, Everyday Indignities: Race, Retaliation,

and the Promise of Title VII, 34 COLUM. HUM. RTS. L. REV. 529 (2003); Michelle L. Turner, The

Braided Uproar: A Defense of My Sister’s Hair and a Contemporary Indictment of Rogers v.

American Airlines, 7 CARDOZO WOMEN’S L.J. 115, 162 (2001) [hereinafter The Braided Uproar]

(discussing that Rogers was wrong because neutral policies can discriminate, and still

discriminate, because the crux of the argument that Black hairstyles such as braids can be

easily changed is the understanding that assimilation into predominantly White hairstyles is

easy and normal).

10. See, e.g., Donald Braman, Of Race and Immutability, 46 UCLA L. REV. 1375 (1998)

(discussing that the Supreme Court has moved toward treating racial status as a product of

social and political institutions and has not definitely adopted nor embraced a biological

conception of race).

11. See Imani Gandy, The U.S. Supreme Court Decided to Ignore Black Hair Discrimination,

REWIRE.NEWS (May 16, 2018, 1:01 PM), https://rewire.news/ablc/2018/05/16/u-s-supreme

-court-ignoring-black-hair-discrimination/. While I do not support the allegation that the

Supreme Court “ignored” Black hair discrimination, since Jones’s motion to intervene was

untimely—and only Jones must accept the consequences of failing to file a timely motion—

this adequately sums the events leading to the end of Catastrophe Management.

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933 Black Women’s Hair: Another Way Forward

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conditions for Black employees? Or, in other words, why have the

federal courts not accepted that Black hair and its attendant natural

hairstyles are the very essence of a racial feature for Black women?

And what is the way forward?

This Note explores this jurisprudential damn—the damning of

Black women because of their Black hair. Part II explores the history

of bias and stereotyping surrounding Black hair and its implicit

connection to workplace grooming. Part III examines whether

Black women should give up on Title VII so far as it concerns their

hair. It analyzes the development of jurisprudence over the last

forty years by examining the law, the critical cases, and the key

scholarship. I posit that while it might seem that Rogers is here to

stay, continued litigation challenging the standard is even more

critical in light of Catastrophe Management. While advancing civil

rights for Black hair at the federal level is important (since it begins

to establish national standards), new methods of social engineering

should be explored. To this end, Part IV begins to review the state

level protections against discrimination based on hair and argues

that lobbying at the state level could provide an alternative to fill

the lapse in federal protections. Part V concludes.

II. HISTORY OF BLACK HAIR, IMPLICIT BIAS, AND

WORKPLACE GROOMING STANDARDS

But if a woman has long hair, it is a glory to her: for her hair

is given her for a covering.

For as old as the Bible, or as old as biblical record, hair and

beauty have been inseparably linked.

A woman’s hair has long

been described as her crowning glory. The spiritual and social con-

nection between women’s hair and beauty and rank is not unique

to Christendom. In Islam, hair is also considered an essential fea-

ture of a woman’s identity, with the covering of it an act of modesty

and a public equalizer between women.

12. 1 Corinthians 11:15. See also 1 Corinthians 11:6 (“[I]t be a shame for a woman to be

shorn or shaven . . . .”); Proverbs 16:31 (“The hoary head is a crown of glory . . . .”).

13. See sources cited supra note 12.

14. Qur’an: An-Nur: 31.

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In ancient African traditions too, hair has played a vital role in

a woman’s beauty, wealth, marital status, religion, and rank.

Even

deeper, the way the hair was worn foretold the geographical origin

of the woman. “In some cultures a person’s surname could be as-

certained simply by examining the hair because each clan had its

own unique hairstyle.”

The connection of hair to identity for Black

women was never “purely cosmetic.”

“Its social, aesthetic, and

spiritual significance has been intrinsic to their sense of self for

thousands of years.”

Transatlantic slavery changed all of that. In most societies a

woman’s hair is her beauty; and its absence becomes her ugliness.

Slavery made the Black woman’s hair ugly (as it made almost

everything else about the Black race undesirable). This section

explores the development and pervasiveness of the social cognition

that has evolved to stigmatize Black hair and its hairstyles

negatively laying the foundation for the type of discrimination that

Black women face in the workplace concerning their hair.

A. History of Black Hair Texture and Hairstyle:

Centuries of Stereotyping

In 2016, the Perception Institute undertook a first-of-its-kind

study to specifically examine implicit and explicit attitudes toward

Black women’s hair.

The results are not very surprising. One in

five Black women noted they felt social pressure to straighten their

15. AYANA D. BYRD & LORI L. THARPS, HAIR STORY: UNTANGLING THE ROOTS OF BLACK

HAIR IN AMERICA 2 (2001).

16. Id.

17. Id. at 7.

18. Id.

19. The “Good Hair” Study, PERCEPTION INST., https://perception.org/goodhair/ (last

visited Jan. 2, 2019).

The study included 4,163 participants: a national sample of 3,475 men and women,

and a sample of 688 “naturalista” women from an online natural hair community.

The study included the Good Hair Survey and the Hair IAT. The survey

assessed women’s explicit attitudes toward black women’s hair, hair anxiety, and

experiences related to their own hair, and the Hair IAT assessed implicit attitudes

toward black women’s hair.

Id.

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933 Black Women’s Hair: Another Way Forward

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hair for work.

On average, White women deemed Black hair to be

unprofessional and demonstrated an explicit bias against it, rating

it as “less beautiful, less sexy/attractive, and less professional than

smooth” (or straight) hair.

Across all groups in the study (broken down into a national

sample and a niche sample for the natural hair community),

there

was a strong implicit bias against Black hair in its natural texture.

When asked what “good hair” was, some of the responses included

“hair that is acceptable to the majority of society,”

or specifically

hair that was “straight, smooth, silky, soft, not frizzy, or not

kinky.”

“Some women link[ed] good hair to whiteness, explaining

that the ‘good hair’ standard is based on the type of hair that white

women have, and is often hair that biracial women have.”

One

interesting finding was that White women in the natural hair

community subset still exhibited a greater bias than the national

sample of Black women and White and Black Men, even though

they demonstrated less bias compared to the wider White woman

sample.

The Perception Institute noted that generally White atti-

tudes toward Black hair were penalizing and negative, with the

strongest stigmas held by White women. Unfortunately, this study

was not an outlier. Two other contemporary studies documented

similar bias against naturally textured Black hair and styles, with

results showing an aversion to textured Black hair across all

groups, and Black women experiencing deep anxiety because of the

stigma about their hair.

20. Alexis McGill Johnson et. al, The “Good Hair” Study: Explicit and Implicit Attitudes

Toward Black Women’s Hair, PERCEPTION INST. 12 (Feb. 2017), https://perception.org/wp

-content/uploads/2017/01/TheGood-HairStudyFindingsReport.pdf.

21. Id. at 6.

22. Id. The natural hair community is a social and digital community of women,

predominantly Black, who support and advocate for the natural texture of Black hair and

its care.

23. Id. at 11.

24. Id. Kinky is a descriptive term for the coiled texture of Black hair.

25. Id.

26. Id. at 14.

27. See Laurie A. Rudman & Meghan C. McLean, The Role of Appearance Stigma in

Implicit Racial Ingroup Bias, 19 GROUP PROCESSES & INTERGROUP RELS. 374, 379–81 (2016);

Susan J. Woolford et al., No Sweat: African American Adolescent Girls’ Opinions of Hairstyle

Choices and Physical Activity, BMC OBESITY 1, 7 (July 1, 2016), https://bmcobes.biomedcentral

.com/track/pdf/10.1186/s40608-016-0111-7 (straightened hair seen as adult hair whereas

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These sentiments are not new. The explicit inferiority toward

Black hair was not only one of the vestiges of slavery, it charac-

terized a large part of the denigration and dehumanization of Black

people under slavery.

One of the first things the slave traders did to their new cargo was

shave their heads if they had not already been shorn by their

captors. . . .

Given the importance of the hair to an African, having the head

shaved was an unspeakable crime. Indeed, . . . “a shaved head can

be interpreted as taking away someone’s identity.“ . . . The

shaved head was the first step the Europeans took to erase the

slave’s culture and alter the relationship between the African and

his or her hair. Separating individuals from family and commu-

nity on the slave ships during the middle passage furthered their

alienation from everything they had ever known. Arriving with-

out signature hairstyles, Mandingos, Fulanis, Ibos, and Ashantis

entered the New World, just as the Europeans intended, like

anonymous chattel.

But what does slavery have to do with negative stigmas toward

Black hair in the present? Everything. For it was under slavery that

the stereotypes regarding Black hair were created and reinforced.

To have Black hair was to have slave hair.

And like everything

else about the slave’s being, the hair was controlled by the master.

Frequently shaving the hair was a form of punishment, a further

debasement even within the slave population.

Slavery took away

the connection of the Black person to their hair in several ways.

First, without the proper tools—such as a long-toothed comb—

Black women could no longer care for their hair in the way that was

specific to its needs.

Second, neither did they have the time. With

death or dismemberment a daily threat on plantations, hair was the

natural hair viewed as juvenile) (“The Social norm expressed by the adolescents in all of the

focus groups was a strong preference for long, straight hair. The almost unanimous belief

that such hair types were most attractive and could be worn by anyone . . . .”)

28. BYRD & THARPS, supra note 15, at 10–11.

29. Id. at 17–20.

30. See Shane White & Graham White, Slave Hair and African American Culture in the

Eighteenth and Nineteenth Centuries, 61 J.S. HIST. 45, 45 (1995).

31. Id. at 49.

32. Id. at 50.

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933 Black Women’s Hair: Another Way Forward

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least of a slave’ s concerns, causing their hair to tangle easily or to

be covered in a wrap for protection.

Third, Black hair was slave hair. “The hair was considered the

most telling feature of negro status, more than the color of the

skin.”

The “negro status” was that of a sub-human with the very

hair being characterized with non-human qualities such as wool or

bush or cotton.

By their hair you could know them, because

distinguishing a free Black from a slave was almost immediate by

looking at their hair.

Fourth, “[o]nce the feminine beauty ideal

was characterized as requiring ‘long straight hair, with fine

features,’ . . . White slave owners sought to pathologize African

features like dark skin and kinky hair to further demoralize the

slaves, especially the women.”

If hair is a woman’s glory, Black

women get none; and the Blacker

the woman, the less the glory.

In other words, Blacks of lighter complexion were generally bi-

racial (mixed with Whites), and with that came a texture of hair

more closely aligned and more easily shaped to the hairstyles worn

by White women and considered acceptable in White society.

a result, mixed-race slaves not only were assigned less grueling

(though not necessarily less cruel) jobs in closer proximity to White

persons, but could more easily pass as free and held higher status

than free non-mixed Black women.

For these reasons, Black

women sought to straighten and contort their hair to approximate

White women’s hair.

White hairstyles were a means of accessing opportunities not

only under slavery but especially after it was abolished.

Black hair

was a badge of slavery where it reminded, and was used to remind,

the now free person of her former status. In fact, it did more than

33. See id.

34. BYRD & THARPS, supra note 15, at 17–18.

35. See id. at 14.

36. Id. at 14–15. Frequently runaway slave advertisements described the slave’s hair

as a telling feature. Id. at 17–18.

37. Id. at 14.

38. That is, the more undiluted the racial makeup, showing in a darker skin, more-

coiled hair, and stronger Afrocentric features.

39. BYRD & THARPS, supra note 15, at 17.

40. Id. at 17–20.

41. Id. at 21–22.

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remind, as hair was used as a tool to maintain the status quo.

Jim

Crow laws required both public and private separation of facilities

used by Black men and women from Plessy v. Ferguson

in 1896 to

Brown v. Board of Education

in 1954. The legal micromanagement

and oppression of Black individuals was so distinct and severe that

there were laws that made it unlawful (1) “for a negro and a white

person to play together or in company with each other in any game

of cards,”

(2) for any white woman to “suffer or permit herself to

be got with child by a negro or mulatto,”

and (3) for a colored

person to serve as a barber to white women or girls.

In a nationally

sanctioned racial climate, racial identifiers such as Black hair were

critical. As noted, hair was and is the primary identifier or more

definitive identifier of race, even above skin color. To illustrate, a

biracial woman (mixed Black/White) may have the same skin color

as a White person; however, if her hair texture is not straight, the

world will know she is Black. With Blackness then being gauged

not just by color but also by hair texture, Black women arguably

experienced a treatment even worse than Black men, both during

and after slavery.

Black women were subjected to the worst situations in

employment under Jim Crow laws. Between 70 and 90 percent of

all Black women workers were agricultural and domestic

employees without minimum wages or Social Security. Black

women generally received one-third to one-half of white women’s

pay, which was one-third to two-thirds of white men’s pay.

The simple truth is that Black women have been straightening

their hair for the last 150 years because it was and has continued to

42. Id. at 22.

43. Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Bd. of Educ., 347 U.S.

483 (1954) (establishing the separate but equal doctrine where racial segregation was held to

be constitutional and the Civil Rights Act of 1875 was held unconstitutional).

44. Brown v. Bd. of Educ., 347 U.S. 483 (1954) (establishing that separate but equal

facilities were inherently unequal).

45. BIRMINGHAM, ALA., CODE § 597 (1930).

46. See Separate Is Not Equal, Select Jim Crow Laws, SMITHSONIAN NAT’L MUSEUM AM.

HIST., http://americanhistory.si.edu/brown/resources/pdfs/unit1/3-jim-crow-laws.pdf (last

visited Jan. 1, 2019) (referencing 1924 Maryland law).

47. Id. (referencing 1926 Atlanta, Georgia, law).

48. BLACK WOMEN IN AMERICA: AN HISTORICAL ENCYCLOPEDIA 637 (Darlene Clark

Hine ed., 1993).

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933 Black Women’s Hair: Another Way Forward

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be a necessity for survival in the American economy. The quest for

“good hair” has been so visceral that today it is a multi-billion-

dollar industry. To illustrate, at the turn of the twentieth century,

the first female millionaire in the United States made her fortune

from the Black hair industry in products designed to straighten the

texture of Black hair. Products were marketed on a philosophy of

“cleanliness and loveliness[,]”

which in turn seemed to emphasize

the underlying mirrored view that Blacks were unclean, unkempt,

uncivilized, ignorant, unintelligent, uneducated, and infantile. For

the majority of Black women, confronting this stereotype was not

met with the type of resistance seen briefly during the civil rights

movement with the afro puff, but through conformity and

nonthreatening behavior, part of which meant getting rid of their

nappy hair.

The next section more closely examines the stereotypes

surrounding Black women’s hair and how they have impacted

workplace grooming policies and standards.

B. Clean, Neat, and Kept Versus Extreme, Eye-Catching, and

Unprofessional: Workplace Grooming Policies Reflect Racial Stereotypes

The problem with workplace grooming standards is not that

they tend to be arbitrary, or even that they generally apply to all

employees regardless of personal circumstance; rather, their

arbitrariness tends to be rooted in gender and racial stereotypes

that put minority women at a disadvantage. Ashleigh Rosette and

Tracy Dumas call this the “hair dilemma.”

They explain that

women in general are in a dilemma trying to balance how they

exhibit qualities generally associated with males (such as compet-

itiveness, ambition, and competence) with their femininity (even if

a bias exists among female characteristics where “conventionally

attractive women fare better . . . than less attractive women”).

49. Madam C.J. Walker, BIOGRAPHY (Apr. 2, 2014), https://www.biography.com/people

/madam-cj-walker-9522174.

50. BYRD & THARPS, supra note 15, at 26. Nappy is another derogatory term for

describing Black hair which suggests that the hair is uncontrollable, unkempt, naturally

coarse, and tightly coiled similar to bushy or wooly.

51. Rosette & Dumas, supra note 9, at 407–08; see Daniel S. Hamermesh & Jeff E. Biddle,

Beauty and the Labor Market, 84 AM. ECON. REV. 1174, 1183 (1994).

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Minority women must add the extra burden of negotiating how to

present their racial identities.

While women in general must bal-

ance femininity and attractiveness, “traditional American culture

views Black women as less feminine and less attractive, as well as

less intelligent, competent, and dependable in their professional

positions than their White counterparts.”

“[T]he hairstyle dilem-

ma for Black women is both uniquely racialized and gendered,”

or, the Black woman occupies an intersection between race and

gender made unique by her hair. The fact is that a Black woman has

hair that is different from all other races of women, so the hairstyles

suited to women generally are not naturally suited to Black women.

Implicit association tests have provided strong evidence that

negative racial stereotypes are frequently associated with Blacks,

and the studies mentioned previously demonstrate a similar

phenomenon as it pertains specifically to Black hair.

“In a society

where straight, long, fine hair (compared to [B]lack hair) is viewed

not only as the norm but as the ideal for women, tightly coiled

[B]lack hair easily becomes categorized as unacceptable, unprofes-

sional, deviant, and too political.”

Angela Onwuachi-Willig

chronicles just how pervasive the reach of these stereotypical

grooming standards are, describing instances of grooming policies

in predominantly Black business schools banning Black textured

hairstyles such as braids, dreadlocks, and other unusual hairstyles

because in the White-dominated corporate world, Black hairstyles

are not accepted.

The rejection of Black textured hairstyles is seen in grooming

policies explicitly banning braids, locks,

and unusual hairstyles,

52. Hamermesh & Biddle , supra note 51, at 1183 (women workers with below-average

looks receive a pay penalty, as compared to women workers with above-average looks); Rose

Weitz, Women and Their Hair: Seeking Power Through Resistance and Accommodation, 15 GENDER

& SOC’Y 667, 673 (2001); see also Avera Martin, The Hatred of Black Hair Goes Beyond Ignorance,

TIME (Aug. 23, 2017), http://time.com/4909898/black-hair-discrimination-ignorance/.

53. Rosette & Dumas, supra note 9, at 409.

54. Id. at 410.

55. See supra notes 21, 22, and 29.

56. Another Hair Piece, supra note 9, at 1107.

57. Id. at 1109.

58. Locks or locs is a different name for dreadlocks but is generally used to denote the

hairstyle without any regard to the religious significance of dreadlocks as worn as a part of

the religious observance of Rastafarianism.

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933 Black Women’s Hair: Another Way Forward

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or in policies that seem generic by banning unkempt, unclean, or

extreme hairstyles.

The question almost seems so simple: What

makes a braided or locked hairstyle extreme and unusual? The

answer is equally simple. For centuries, Black women have been

forcing their hair into the dominant White culture, so when they

stop, it is a very unusual thing and may seem extreme to others who

are not Black. Additionally, when explicit racism gives way to

subtle racism, things that were once outright inhuman, degrading,

and disgusting, become unusual, extreme, and unconventional.

This is how society reconciles itself in incorporating empow-

erment with oppression. One of the ways that contradiction is dealt

with is through denial. That denial helps to maintain the stability

of the society rather than root out all injustices. Most people like to

believe they live in a just society that supplies adequate equal

protections, but many societies tend to leave the most subtle and

insidious harms just outside of change’s reach.

Perhaps it is the

subtlety of certain types of discrimination that precludes mean-

ingful change. So it is with Black hair. The societal discrimination

against Black hair is one of those insidious harms (though it is

certainly not subtle nor is the impact on Black women minor).

59. See, e.g., DEP’T OF THE ARMY, AR 670-1, WEAR AND APPEARANCE OF ARMY UNIFORMS

AND INSIGNIA 3-2(d) (2014), https://www.army.mil/e2/c/downloads/337951.pdf (“Exam-

ples of hairstyles considered to be faddish or exaggerated and thus not authorized for wear

while in uniform, or in civilian clothes on duty, include, but are not limited to, locks and

twists (not including French rolls/twists or corn rows); hair sculpting (eccentric directional

flow, twists, texture, or spiking); buns or braids with loose hair extending at the end; multiple

braids not braided in a straight line; hair styles with severe angles; and loose unsecured hair

(not to include bangs) when medium and long hair are worn up.”); see also EEOC v.

Catastrophe Mgmt. Sols., 852 F.3d 1018, 1030 (11th Cir. 2016) (grooming policy prohibiting

“excessive hairstyles”); Hollins v. Atl. Co., 188 F.3d 652 (6th Cir. 1999) (hairstyle not to be too

“eye-catching” or “different”); Eatman v. United Parcel Serv., 194 F. Supp. 2d 256 (S.D.N.Y.

2002) (employees must cover hairstyles that are “unconventional”); Helene Cooper, Army’s

Ban on Some Popular Hairstyles Raises Ire of Black Female Soldiers, N.Y. TIMES (April 20, 2014),

https://www.nytimes.com/2014/04/21/us/politics/armys-ban-on-some-popular-hair

styles-raises-ire-of-black-female-soldiers.html?mcubz=0 (U.S. Army policy banning braids

and locks as extreme (although later revised after significant public outcry)); Breanna

Edwards, U.S. Navy Ends Ban on Dreadlocks for Women, ROOT (July 13, 2018, 9:24 AM) https://

www.theroot.com/u-s-navy-ends-ban-on-dreadlocks-for-women-1827571585?utm_medium

=socialflow&utm_source=theroot_twitter; Christopher Mele, Army Lifts Ban on Dreadlocks, and

Black Servicewomen Rejoice, N.Y. TIMES (Feb. 10, 2017), https://www.nytimes.com/2017

/02/10/us/army-ban-on-dreadlocks-black-servicewomen.html.

60. AMERICAN DENIAL: THE TRUTH IS DEEPER THAN BLACK AND WHITE (Vital Pictures

2015), http://byu.kanopystreaming.com/video/american-denial.

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While society may have incorporated its longstanding bias against

Black hair as almost normal, it is the law that is expected to act as a

check against societal bias and make opportunities, particularly in

employment, equal. Paulette Caldwell said it best when she said

“Hair seems to be such a little thing. Yet it is the little things, the

small everyday realities of life, that reveal the deepest meanings

and values of a culture, give legal theory its grounding, and test its

legitimacy.”

Title VII has failed to achieve that mandate for

Black women.

III. SHOULD BLACK WOMEN GIVE UP ON TITLE VII?

This Part proceeds by first outlining the protections and

promises of Title VII as well as the Equal Employment Opportunity

Commission (EEOC) guidelines on workplace grooming policies. It

then tracks the jurisprudence on civil rights protections relating to

Black women’s hair. This is presented in a mixed chronological

fashion, exploring not only the major cases but also the scholastic

commentary and development in light of those cases. Finally, a

reimagining of jurisprudence on Black hair is suggested based on

the analysis of undue burden.

A. Forty Years of Loss: Title VII, the EEOC, and Black Hair

1. Title VII and the EEOC guidelines

Black women seeking a remedy for workplace discrimination

based on their hairstyle have turned to Title VII of the Civil Rights

Act of 1964. Title VII provides in relevant part that it is unlawful for

an employer

(1) to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national

origin; or

(2) to limit, segregate, or classify his employees or applicants

for employment in any way which would deprive or tend to de-

prive any individual of employment opportunities or otherwise

61. Caldwell, supra note 9, at 370.

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933 Black Women’s Hair: Another Way Forward

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adversely affect his status as an employee, because of such

individual’s race, color, religion, sex, or national origin.

Additionally, a claim may be brought under § 1981 of the Civil

Rights Act, which generally protects persons’ equal rights in mak-

ing and enforcing contracts.

All persons within the jurisdiction of the United States shall have

the same right in every State and Territory to make and enforce

contracts, to sue, be parties, give evidence, and to the full and

equal benefit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens, and shall be

subject to like punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

A 1991 amendment made it clear that § 1981 prohibits discri-

mination not only in the formation of contracts but also in the

contractual relationship in employment. While there is no defini-

tion for race given in the statute,

the EEOC’s Compliance Manual

notes that Title VII’s prohibition of race discrimination generally

encompasses, among other things, (1) a person’s physical charac-

teristics or “[e]mployment discrimination based on a person’s

physical characteristics associated with race, such as a person’s

color, hair, facial features, height and weight”;

and (2) culture or

62. 42 U.S.C. § 2000e-2(a)(1)–(2) (2012).

63. Id. § 1981(a).

64. Id.

65. Neither Title VII nor the EEOC contain a definition of race. However, the Office of

Management and Budget (OMB) provides five racial categories: (1) American Indian or

Alaska Native; (2) Asian; (3) Black or African American; (4) Native Hawaiian or Other Pacific

Islander; and (5) White; and one ethnicity category, Hispanic (or Latino).

66. U.S. EQUAL EMP’T OPPORTUNITY COMM’N, Section 15: Race & Color Discrimination,

in EEOC COMPLIANCE MANUAL (Apr. 19, 2006) [hereinafter EEOC COMPLIANCE MANUAL],

https://www.eeoc.gov/policy/docs/race-color.html#VIIA. Other bases for racial discrimi-

nation expressly prohibited in Section 15-II of the Compliance Manual include (1) ancestry

employment, meaning that “[d]iscrimination against a person because of his or her ancestry

can violate Title VII’s prohibition against race discrimination”; (2) discrimination based on

race-linked illnesses, “[f]or example, sickle cell anemia is a genetically-transmitted disease

that affects primarily persons of African descent”; (3) “[p]erception: [e]mployment discri-

mination against an individual based on a belief that the individual is a member of a

particular racial group, regardless of how the individual identifies himself”;

(4) “[e]mployment discrimination against an individual because of his/her association with

someone of a particular race”; (5) “discrimination against a subgroup of persons in a racial

group because they have certain attributes in addition to their race. Thus, for example, it

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employment discrimination because of cultural characteristics

related to race or ethnicity.

Title VII prohibits employment

discrimination against a person because of cultural characteristics

often linked to race or ethnicity, such as a person’s name, cultural

dress and grooming practices, or accent or manner of speech.

The EEOC notes that “[a]ppearance standards generally must

be neutral, adopted for nondiscriminatory reasons, consistently

applied to persons of all racial and ethnic groups, and, if the stan-

dard has a disparate impact, it must be job-related and consistent

with business necessity.”

Specifically with hair, while employers’

grooming policies can mandate clean, neat, and well-groomed

hairstyles, those rules should respect racial differences in hair

textures and should be applied in such a way that they do not

disparately impact Black women from wearing hairstyles that are

natural to their hair textures. Two key prohibitions include (1) pol-

icies that prevent Black women from wearing their hair in an afro

style

and (2) employers applying neutral rules more restrictively

to hairstyles worn by Black women.

Outside of these two limited prohibitions, however, the federal

courts have routinely disagreed with the EEOC and have consis-

tently denied that Black women have a claim for racial discri-

mination when they have been terminated or lost out on a job

opportunity because of wearing their hair in a hairstyle suitable to

their natural texture.

would violate Title VII for an employer to reject Black women with preschool age children,

while not rejecting other women with preschool age children.” Id.

67. Id.

68. See El-Hakem v. BJY, Inc., 415 F.3d 1068, 1073 (9th Cir. 2005) (“Names are often a

proxy for race and ethnicity.”).

69. EEOC COMPLIANCE MANUAL, supra note 66.

70. See Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 166–67 (7th Cir. 1976)

(recognizing a valid Title VII claim where plaintiff alleged that her employer fired her

because of her afro hairstyle).

71. See Hollins v. Atl. Co., 188 F.3d 652, 661 (6th Cir. 1999) (holding that a reasonable

jury could find Title VII violation where company prevented Black female from wearing hair

in a “finger waves” hairstyle and in other hairstyles deemed “too eye-catching,” while not

subjecting White women to such standards, even though the company admitted Plaintiff’s

hairstyles complied with company policy that hairstyles be neat, well-groomed, and safe).

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933 Black Women’s Hair: Another Way Forward

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2. Cases and commentaries on Black hair discrimination: unequal

treatment and disparate impact

Following the civil rights movement and the passage of the

Civil Rights Act, many Black women began embracing their natural

hair and wearing textured hairstyles.

When their employers

pushed back on these hairstyles, Black women sought refuge in the

law. Instead, they realized that federal courts would do very little

to offer any protection.

Plaintiffs can either bring a claim based on a disparate

treatment analysis or a disparate impact analysis. This essentially

means that the employer either deliberately treated members of the

protected class differently compared to others and that this

difference in treatment was because of an intent to discriminate,

or they execute policies that seem neutrally applied on the face but

have an effect that is felt more harshly by the protected group.

Typically plaintiffs have brought disparate impact cases because

the grooming policies have been facially neutral or categorically

prohibit Black-textured hairstyles despite who might be attempting

to wear them.

The most prominent case is perhaps Rogers v. American Airlines,

decided in 1981, where the court essentially ruled that American

Airlines could legally have grooming policies that were discrimi-

natory to Black hair.

Renee Rogers was an airport operations

agent for American Airlines. American Airlines had a policy

prohibiting women from wearing all-braided hairstyles.

Rogers

72. See, e.g., Chime Edwards, The Impact of the ‘Fro in the Civil Rights Movement, ESSENCE

(Feb. 10, 2015), https://www.essence.com/holidays/black-history-month/impact-fro-civil

-rights-movement/.

73. This is the standard developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973), which outlined a prima facie case for discrimination under Title VII that has been

more broadly applied to most discrimination cases. The Court stated that a plaintiff must

show four elements: (1) “that [s]he belongs to a racial minority”; (2) “that [s]he applied and

was qualified for a job for which the employer was seeking applicants”; (3) “that, despite

[her] qualifications, [s]he was rejected”; and (4) “that, after [her] rejection, the position re-

mained open and the employer continued to seek applicants from persons of complainant’s

qualifications.” Id.

74. See Griggs v. Duke Power Co., 401 U.S. 424, 430–32 (1971) (holding that an employ-

ment test, though facially neutral, had a disproportionate effect in blocking the advancement

of Black persons working there who were previously only allowed certain jobs).

75. Rogers v. Am. Airlines, 527 F. Supp. 229, 231 (S.D.N.Y. 1981).

76. Id.

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sued, claiming that the policy discriminated against her on the basis

of her sex and race, because cornrows were of historical importance

to Black women’s expression of identity.

Previously, it had been inferred in Jenkins v. Blue Cross Mutual

Hospital Insurance, Inc. that a woman fired for changing her hair-

style to an afro might have a valid Title VII claim.

The Rogers court

broached the topic in dicta and steered clear of pronouncing that

the afro was, in fact, a protected hairstyle. Disappointingly, the afro

was only discussed as a means to unequivocally pronounce that

other Black textured hairstyles like the braid could be disallowed

without any regard to the effect or burden it might have on Black

women. The court simply saw no burden:

Plaintiff may be correct that an employer’s policy prohibiting the

“Afro/bush” style might offend Title VII and section 1981. But if

so, this chiefly would be because banning a natural hairstyle

would implicate the policies underlying the prohibition of

discrimination on the basis of immutable characteristics . . . an all-

braided hairstyle is a different matter. It is not the product of

natural hair growth but of artifice. An all-braided hairstyle is an

“easily changed characteristic,” and, even if socio-culturally asso-

ciated with a particular race or nationality, is not an impermissible

basis for distinctions in the application of employment practices

by an employer.

Furthermore, the court callously noted that even if it were racial

discrimination, it was not so big a deal.

I agree with the many articles that have analyzed and con-

demned the Rogers decision. Some outright indict it,

showing how

steeped it was in blindness and bias.

The court’s usage of the word

77. Id. at 232.

78. Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164 (7th Cir. 1976). One

“might” have a valid Title VII claim because, though not a plaintiff specifically, she filed a

class suit seeking to represent all women, and Black women cannot represent White women.

79. Rogers, 527 F. Supp. at 232 (internal citations omitted).

80. Id. at 232–33.

81. The Braided Uproar, supra note 9, at 129–47 (a fulsome discussion on why Rogers is

wrong, noting, among other things, that neutral polices can be discriminatory and that hair

was of legal concern to equal opportunities).

82. Caldwell, supra note 9, at 369. (“[B]y legitimizing the notion that the wearing of

any and all braided hairstyles in the workplace is unbusinesslike, Rogers delegitimized me

and my professionalism.”)

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933 Black Women’s Hair: Another Way Forward

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“bush”

in describing the afro style serves as proof of the implicit

bias that permeates the opinion.

In truth, antidiscrimination law should contemplate and attack

the negative associations that are behind behavioral manifestations

of policies that deem Black textured hairstyles as extreme and

unprofessional. Undoubtedly, hair grooming policies that would

prohibit all women from wearing straight hair, but that would

rather require all women to wear a braid, for example, would not

be seen as trivial when most women do not have the racial hair

qualities that support easily wearing hairstyles such as a braid.

There has been no shortage of scholarly analysis and advice

since Rogers on how to frame and legally combat workplace discri-

mination against Black hair. The next few paragraphs provide only

a sampling of the scholarly literature in response to the Rogers

decision. Michelle Turner suggested an expansion of Title VII to

accommodate that a mix category (sex with race) produces unique

discriminatory vulnerabilities that must be accounted for.

Angela

Onwuachi-Willig argues that the court simply has incorrect

assumptions about Black women’s hair, and but for these assump-

tions, Black women “would already be protected from employers’

prohibitions of braided, locked, and twisted hairstyles, just as Black

men (as well as Black women) are protected from certain employer

restrictions on Afro hairstyles.”

Onwuachi-Willig continued to

say that the courts’ decision is because of a lack of thought and

consideration for the nature of Black women hair. If they only

thought carefully of the historical and contemporary bias and

oppression against women because of the texture of their hair,

“they would view employer bans on natural hairstyles to be just as

discriminatory as employer bans on brown skin, another proxy for

race and another proxy that can be altered with money, time, effort,

and damage to the psyche.”

83. Rogers, 527 F. Supp. at 232.

84. The Braided Uproar, supra note 9, at 156. (“Congress should amend the language of

Title VII to include the phrase ‘or any combination thereof’ to the text of the statute to make

the law more inclusive. This approach would explicitly allow cases that allege discrimination

based upon multiple categories to proceed without having to choose among the group

statuses proscribed by the statute.”)

85. Another Hair Piece, supra note 9, at 1104.

86. Id.

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Onwuachi-Willig argued that even if braided hair is not immu-

table, it is still rooted in the biological makeup of Black women, and

grooming policies banning braids required Black women to make a

biological change.

Finally, she argued that

Lawyers need to explain and courts need to recognize the implicit

demands for changes in hair structure and texture that currently

exist in employers’ prohibitions of black women’s natural

hairstyles. Moreover, the law needs to move beyond viewing

these required changes to black women’s hair structure and

texture as reasonable.

Paulette Caldwell asserted that the court did see Black women’s

hair in exclusively biological of terms. Drawing a strict immutability

line—between biology (the afro) and cultural artifice (braids, etc.)—

allowed the court to avoid the “basic elements of antidiscrimination

analysis” such as group history, the oppressed position of the

group over time, current position in relation to others, and if em-

ployment practices are perpetuating the subordination.

Turner was basically prophesying when she wrote that Black

women would not be able to reach successful verdicts until society

in general, and judges in particular, discontinue holding “unen-

lightened views on cultural issues.”

She argued that discrimi-

natory hair policies seem neutral because those policies expect all

to assimilate to the dominant hair culture and hairstyles of White

individuals.

She further argued that judges in turn have seen

these claims as trivial because they too have approached the issue

with an assimilationist perspective.

Since Rogers, federal courts have consistently denied claims

from Black women when argued under a disparate impact analysis,

essentially ignoring the scholarly contributions published in its

wake. The next few cases are testament.

In McBride v. Lawsaf, Inc., decided in 1996, a recruitment officer

was prohibited from referring qualified applicants with braided

87. Id.

88. Id.

89. Caldwell, supra note 9, at 377.

90. The Braided Uproar, supra note 9, at 119.

91. Id. at 129–30.

92. Id. at 119.

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933 Black Women’s Hair: Another Way Forward

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hairstyles to their clients.

After repeated contestation of the policy,

she notified her managers that she would file a complaint with the

EEOC.

She was terminated the same day for inappropriate and

unprofessional conduct.

The court dismissed the case, noting that

the “underlying charge of discrimination is revealed to be not only

meritless but also unreasonable.”

The opinion stated that “[a]s a

matter of law, an employer’s grooming policy prohibiting a braided

hair style is not ‘an unlawful employment practice.’”

The court

did not even seem to really consider the fact that the employer in

the case was merely an employment referral agency and the

weeded-out applicants would not actually be working for them.

The agency had no legitimate reason to refuse to refer qualified

candidates with braided hairstyles. In other words, the weeding of

applicants based on ethnic hairstyles was a direct result of the

agency’s racial bias.

In another case, Pitts v. Wild Adventures, Inc., Patricia Pitts’s 2008

claim was dismissed on summary judgment—not even making it

to trial.

In her ordeal, her White female supervisor disapproved of

her cornrows, telling her to get her hair done in a “pretty style”

—

meaning her cornrows were ugly (emphasis added). At first she

complied to avoid any trouble by putting in extensions (fake hair)

and twisting her hair so that it would hang loosely down.

100

Again,

her supervisor disapproved, noting that it looked too much like

dreadlocks.

101

Pitts refused to change her hair after this second

reproach because the company had no written policy on hairstyle

grooming.

102

The company then issued an official hair policy that

banned “dreadlocks, cornrows, beads, and shells.”

103

The plaintiff

93. McBride v. Lawstaf, Inc., No. 1:96-cv-0196-cc, 1996 WL 755779, at *1 (N.D. Ga.

Sept. 19, 1996).

94. Id.

95. Id.

96. Id. at *2.

97. Id.

98. Pitts v. Wild Adventures, Inc., No. 7:06-CV-62-HL, 2008 WL 1899306, at *1 (M.D.

Ga. Apr. 25, 2008).

99. Id.

100. Id.

101. Id.

102. Id.

103. Id.

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did not comply with the grooming policy and was later terminated

for not complying with her supervisor’s request, and for other neg-

ligence on the job.

104

The court ruled that she had no claim under

Title VII because she had not filed a report with the EEOC and thus

she had not exhausted her administrative remedies.

105

The court

did however consider her claim under § 1981. Categorically, the

court stated that “[g]rooming policies are typically outside the

scope of federal employment discrimination statutes because they

do not discriminate on the basis of immutable characteristics.”

106

Or, that despite the history of Black hairstyles and the nature itself

of Black hair being natural for textured styles, the bottom line was

that a braid or lock could be straightened or pulled out and so was

changeable to adhere to the policy.

But federal antidiscrimination statutes were not drafted on the

basis of mutable (changeable) and immutable (unchangeable) char-

acteristics of a group, but rather because of the historical oppression

of certain groups based on characteristics unique to those groups.

This is evident given that religion is a protected class and is in no

way immutable. In fact, individuals are not born as any religion,

though parents may raise them in one that they may come to adopt.

Nevertheless, people convert and change religions. So too it may be

argued that sex is not an immutable characteristic—even without

factoring in transgendered individuals, the hermaphrodite phe-

nomenon is not uncommon.

107

Skin color is also not immutable or

unchangeable and can be darkened or lightened with ease.

108

White

women tan to shades that are similar to those of some Black

women, and Black and Brown

109

women lighten (whiten or bleach)

their skin to achieve the complexion of White women. Interestingly,

as noted earlier, the distinguishing racial feature between a White

104. Id. at *3.

105. Id. at *4.

106. Id. at *5.

107. For example, there are individuals who are born biologically as one sex on the inside

and another on the outside, or who were not assigned the proper or predominant sex at birth.

108. See generally, Maya Allen, The Reality of Skin Bleaching and the History Behind It,

BYRDIE (May 4, 2018), https://www.byrdie.com/skin-bleaching (discussing the phenom-

enon of changing skin color from darker to lighter; particularly its rise in post-colonial

predominantly Black nations).

109. Brown is a term referring to women of color not of African descent, for example,

East Indian women.

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933 Black Women’s Hair: Another Way Forward

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woman who tans and a Black woman who bleaches, is the differ-

ence in their hair texture. For this reason, when Rachel Dolezal—a

White civil rights activist—began identifying as Black, her transi-

tion was not complete without manipulating her hair texture to

approximate a Black coiled hair texture.

110

Five years after Pitts, in Campbell v. Alabama Department of

Corrections, Campbell’s employer had a grooming policy that did

not allow women to wear dreadlocks, even though it allowed men

to wear dreadlocks.

111

Andrea Campbell brought both a gender and

racial discrimination claim.

112

The court dismissed the case, noting

that “[n]ot all conduct by an employer that negatively affects an

employee should be deemed an adverse employment action. The

action must be more than ‘some de minimis inconvenience. . . .”

113

Contrast that with Michelle Turner’s 2001 article referring to the

grooming policies against Black hair as “spirit murder.”

114

While appearance choices may seem to be trivial “micro-

discrimination,” the cumulative impact of such small incidents of

discrimination amounts to “spirit murder.” . . .

Workplace prohibitions against braids are not the only, and

perhaps not even the most substantial, incidents of racism and

sexism that a Black woman can and often does experience.

Instead, such policies contribute to an overall sense that Black

women do not deserve the same respect and opportunity that

Whites and men are given.

Policies which have the effect of excluding Black women from

the workplace contribute to other acts of racism and sexism that

combine to assault the psyche of Black women.

115

One outlier that raised a valid Title VII claim was the 1999 Hollins

v. Atlantic Co. case, where Eunice Hollins sued her employer for its

110. Scott Stump, Rachel Dolezal: ‘I Don’t Identify as African-American, I Identify as Black,’

TODAY (Mar. 27, 2017, 8:01 AM), https://www.today.com/news/rachel-dolezal-i-don-t

-identify-african-american-i-identify-t109654.

111. Campbell v. Ala., Dep’t of Corrs., No. 2:13-CV-00106-RDP, 2013 WL 2248086, at *1

(N.D. Ala. May 20, 2013).

112. Id.

113. Id. at *2 (quoting Doe v. Dekalb Cty. Sch. Dist., 145 F.3d 1441, 1452 (11th Cir. 1998)).

114. The Braided Uproar, supra note 9, at 145.

115. Id. at 145–46 (quoting Patricia Williams, Spirit-Murdering the Messenger: The

Discourse of Fingerpointing as the Law’s Response to Racism, 42 U. MIAMI L. REV. 127, 129 (1987)).

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extreme micromanagement of her hairstyles.

116

Her ordeal is worth

highlighting to illustrate just how significant Black hair is. It

certainly was not insignificant to her Atlantic Co. supervisors. The

company’s grooming policy noted that “[w]omen should have a

neat and well groomed hair style.”

117

When Hollins came to work

in finger waves (a short wavy hairstyle lying neatly on the head),

her supervisor noted that even though the style was neat, well

groomed, and safe, it was unacceptable because it was “too dif-

ferent” and “eye catching.”

118

Hollins resisted and re-wore the hairstyle but was informed

that if she did not like the policy, she should work elsewhere.

119

She

changed her hairstyle. Later she was told that she had to have any

hairstyle she wore preapproved by presenting pictures.

120

When

she showed her supervisors a picture of a braided style, they said

no.

121

She did this for over a year until she went to work in a

ponytail—a style that many White women under the same super-

visor routinely wore. She was told that the ponytail was “too

drastic.”

122

Multiple work performance reviews noted that she had

failed to wear appropriate hair styles.

123

She finally filed a com-

plaint with the EEOC and at some point after was told that if her

hair was “that important” to her, she should work somewhere

else.

124

Supervisors also lowered her performance evaluation solely

on the basis of her hairstyle.

125

Surprisingly, even after asserting a disparate treatment case, the

district court dismissed the case on summary judgment.

126

The

Sixth Circuit heard her appeal and held that a reasonable jury could

find a Title VII violation where a company prevented a Black

female from wearing hair in a finger waves hairstyle and in other

116. Hollins v. Atl. Co., 188 F.3d 652, 661 (6th Cir. 1999).

117. Id. at 655.

118. Id. For an example of finger wave hairstyles see Image Search of Finger Wave

Hairstyles, GOOGLE, https://www.google.com (search “finger wave hairstyle black women”).

119. Hollins, 188 F.3d at 655.

120. Id. at 656.

121. Id.

122. Id.

123. Id.

124. Id. at 657.

125. Id.

126. Id.

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933 Black Women’s Hair: Another Way Forward

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hairstyles deemed “too eye catching,” while not subjecting White

women to those standards—that is, White women were never

reprimanded for wearing the same hairstyle Hollins wore and

never had to seek preapproval for any of their hairstyles that could

have been deemed eye catching.

127

Not one year later, in 2000, a district court in Louisiana ruled in

Santee v. Windsor Court Hotel Ltd. Partnership that it was not racially

discriminatory to prohibit Black women from wearing blonde hair,

while White women were allowed to wear blonde hair.

128

That

might have seemed to be textbook disparate treatment, but the

court reasoned that the case was about hair color, a mutable

characteristic, so information on the individual (that is, of what

race) who could wear blonde hair was immaterial to the case.

129

The

simple truth that the court chose to ignore is that the only difference

between a Black woman wearing blonde hair and a White woman

wearing blonde hair is the race of the two women.

Combining all the failure, lessons, and wisdom of the past forty

years, EEOC v. Catastrophe Management Solutions in 2014 again

challenged the persistent refusal to acknowledge the racial discrim-

ination in grooming policies that targeted Black-textured hair-

styles.

130

This time the EEOC itself sued. Chastity Jones had applied

for a job at a call center and, after she passed the initial interview

and was offered a job, one of the human resource officers asked her

if she was wearing dreadlocks. She said she was, and the officer

noted that even though hers were neat, locks had a tendency to look

untidy. The company had a grooming policy which provided that

“[a]ll personnel are expected to be dressed and groomed in a

manner that projects a professional and businesslike image . . . .

[H]airstyles should reflect a business/professional image. No

excessive hairstyles . . . .”

131

This they interpreted to ban dreadlocks.

In a press release, the EEOC stated that Catastrophe’s prohi-

bition on Jones’ locks and the broader imposition of its grooming

127. Id. at 660.

128. Santee v. Windsor Court Hotel Ltd. P’ship, No. Civ.A.99-3891, 2000 WL 1610775,

at *3 (E.D. La. Oct. 26, 2000).

129. Id. at *4.

130. EEOC v. Catastrophe Mgmt. Sols., 11 F. Supp. 3d 1139 (S.D. Ala. 2014).

131. Id. at 1140.

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policies to target hairstyles more traditionally associated with Black

women and men “discriminated against African Americans based

on physical and/or cultural characteristics.”

132

The EEOC further

explained that in its view

[The] litigation is not about policies that require employees to

maintain their hair in a professional, neat, clean, or conservative

manner . . . . It focuses on the racial bias that may occur when

specific hair constructs and styles are singled out for different

treatment because they do not confirm to normative standards for

other races. . . .

. . . Generally there are racial distinctions in the natural texture

of [B]lack and non-[B]lack hair. The EEOC will not tolerate

employment discrimination against African-American employees

because they choose to wear and display the natural texture of

their hair, manage and style their hair in a manner amenable to

it, or manage and style their hair in a manner differently

from non-[B]lacks.

133

The court noted that

the outcome . . . is clear. . . . Title VII prohibits discrimination on

the basis of immutable characteristics, such as race, sex, color, or

national origin. A hairstyle, even one more closely associated with

a particular ethnic group, is a mutable characteristic. Therefore,

the complaint fails to state a plausible claims [sic] for relief.

134

It is telling that the court, in its analysis that Title VII was only

meant to protect against characteristics that are immutable, conven-

iently omitted religion from the list of protected classes for which

Title VII offers protection against discrimination.

The EEOC made a mixed biological and cultural argument that

even if hair is immutable, dreadlocks were a natural outgrowth of

Black hair that was “a reasonable and natural method of managing

the physiological construct of Black hair[.]”

135

Or in other words,

while dreadlocks (or a twist or braid as less-permanent styles) can

132. Press Release, U.S. Equal Emp. Opportunity Commission, Mobile Catastrophic

Insurance Claims Company Sued by EEOC for Race Discrimination over Hair Policy (Sept.

30, 2013), https://www1.eeoc.gov/eeoc/newsroom/release/9-30-13j.cfm (internal quota-

tion marks omitted).

133. Id. (quoting C. Emanuel Smith and Delner Franklin-Thomas).

134. Catastrophe Mgmt. Sols., 11 F. Supp. 3d at 1143.

135. Id. at 1144.

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933 Black Women’s Hair: Another Way Forward

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be changed—by cutting them off and allowing the hair to regrow—

a dreadlock is a type of hairstyle that naturally comes because of

the nature of Black hair. It is the sort of hairstyle that follows the

natural growth of the hair because it is prone to interlock on itself

because of the tight curls.

To that the court responded that “[n]o amount of expert testi-

mony can change the fact that dreadlocks is [sic] a hairstyle” even

if it “is a reasonable result of hair texture.”

136

With this complete

dismissal, the court essentially pronounced that the only solution a

Black woman could hope for was if she wore her natural hair

without it being combed or styled, or if she styled it in an afro

(which has the appearance of being not styled). Only the afro is

protected. The decision that the afro is not a hairstyle but the only

immutable, and therefore protected, way to wear Black hair further

showed the blindness of the federal courts to the nature of Black

hair. To illustrate, the hair must be teased in a way that gives it an

afro style. Black women do not naturally grow afros.

Further, at what point does the afro become too visible/

distracting? Where is the line for the professional afro to be drawn?

Should it be a small afro or a much larger afro? And how large can

a Black woman go before she is disciplined for wearing the only

natural hairstyle that is legally protected? If the plaintiff in Rogers

had worked as a flight attendant with a shorter afro, would the

outcome have been different?

137

In fact, Black hair is more prone to lock than it is to become an

afro when left without the grooming that is required to produce a

hairstyle. The natural clumping of Black hair produces locks after a

while, and this is precisely why locks are seen as truly natural to

those who take on that type of grooming.

138

Further the hair might be worn out in tight curls resembling

dreadlocks, such as a twist out. Such a hairstyle allows the hair to

136. Id.

137. See, e.g., Image Search of Small Afro Hairstyles, GOOGLE, https://www.google.com

(search “small afro”); Image Search of Large Afro Hairstyles, GOOGLE, https://www.google

.com (search “large afro”).

138. An afro is teased out, compared to a wash-and-go hairstyle that generally involves

no combing or manipulation of the hair. For examples of wash-and-go hairstyles see Image

Search of Wash-and-Go Hairstyles, GOOGLE, https://www.google.com (search “wash and

go styles”).

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clump to together without forming locks.

139

The reality is that it is

only Black women who have had to endure this level of micro-

management of a characteristic that is unique to their race. As

Wendy Greene laments, the Eleventh Circuit literally split the hair

of Black women in order to uphold racial bias prevalent in

society.

140

And by doing so completely missed the heart of the

argument at the foundation of Black hair discrimination. She notes,

“in determining whether to dispense statutory protection,” the

query should shift “from ‘whether a person could change a

particular characteristic’ to ‘whether the characteristic is something

that the person should be required to change[.]’”

141

Title VII might seem useless in helping Black women defend

themselves against hair discrimination. It is clear that the current

jurisprudence will hardly tolerate either a disparate treatment or

disparate impact analysis. But should Black women give up on Title

VII when it comes to their hair? No. When Title VII was passed in

1964, there were many forms of discrimination that were not

contemplated but that courts have since pronounced to fall within

the statute’s protections. For example, gender stereotyping was not

originally considered sex discrimination, but the reach of Title VII

was expanded in the 1989 Supreme Court case Price Waterhouse v.

Hopkins to include discrimination based on expected gender

roles.

142

Justice O’Connor’s concurrence in that case added that the

analysis under Price Waterhouse would serve as a supplement to the

disparate treatment analysis outlined in McDonnell Douglas Corpo-

ration v. Green.

143

Further, the EEOC has successfully litigated claims of trans-

gender discrimination under sex discrimination jurisprudence.

144

139. A twist out is when the hair is done in two strand twists, and then the twists are

pulled out without being combed out, leaving more definition in the curl pattern. For an

example of a twist out see My Natural Sistas, How to Achieve the Perfect Twist Out Every

Time!!!, YOUTUBE (Apr. 23, 2017), https://www.youtube.com/watch?v=ZIeuXzxXqYE.

140. Splitting Hairs, supra note 9, at 992, 1023.

141. Id. at 1034 (quoting Wolf v. Walker, 986 F. Supp. 2d 982, 1013 (W.D. Wisc. 2014)).

142. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

143. Id. at 261 (O’Connor, J., concurring).

144. See, e.g., EEOC v. Deluxe Fin. Serv. Corp., (D. Minn., Civ. No. 0:15-cv-02646-ADM-

SER, filed June 4, 2015, settled Jan. 20, 2016); Fact Sheet: Recent EEOC Litigation Regarding Title

VII & LGBT-Related Discrimination, U.S. EQUAL EMP. OPPORTUNITY COMMISSION (July 8, 2016),

https://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm (“The EEOC sued Deluxe

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933 Black Women’s Hair: Another Way Forward

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So, too, has sexual harassment been brought under federal civil

rights protections.

145

In Meritor Savings Bank, FSB v. Vinson, the

Supreme Court explicitly stated that the language of Title VII was

not limited to tangible discrimination, but that Congress intended

to “strike at the entire spectrum of disparate treatment of men

and women.”

146

Further, intra-sex discrimination only became a part of sex

discrimination jurisprudence in 1998 when the Supreme Court

ruled that Title VII prohibited discrimination against men by

men.

147

In that case, Justice Scalia wrote in the majority opinion that

“statutory prohibitions often go beyond the principal evil to cover

reasonably comparable evils . . . .”

148

A reasonably comparable evil

to race discrimination is discrimination on the basis of hair texture

and textured hairstyles.

Perhaps highlighting the advancements in the jurisprudence of

other types of discrimination protected under federal law (for

example sex discrimination)—in comparison to the stagnation in

Financial Services Corporation, a check-printing and financial services corporation, alleging

that after charging party, Britney Austin, began to present at work as a woman and informed

her supervisors that she was transgender, Deluxe refused to let her use the women’s

restroom in violation of Title VII. The Commission further alleged that supervisors and

coworkers subjected her to a hostile work environment, including hurtful epithets and

intentionally using the wrong gender pronouns to refer to her. As part of a settlement

agreement, Deluxe agreed to pay $115,000 in damages. Furthermore, a three-year consent

decree provides that Deluxe will not make exclusions in their healthcare benefits plan for

medically necessary care based on transgender status, will revise employment policies

including a commitment to preventing unlawful sex discrimination, and will provide

employee training explaining that unlawful sex discrimination includes discrimination

based on sex-stereotypes, gender-identity, and transgender status.”). But see, Laura Jarrett,

Sessions Says Civil Rights Law Doesn’t Protect Transgender Workers, CNN POLITICS (Oct. 5, 2017,

11:58 AM) http://www.cnn.com/2017/10/05/politics/jeff-sessions-transgender-title-vii

/index.html (noting that Attorney General Sessions issued a memo on behalf of the Justice

Department, in which they determined that Title VII does not protect transgendered persons

from employment discrimination). At last update (July 2016), the EEOC had four LGBT-

related discrimination cases pending; it will be interesting to see if federal courts abandon

their trajectory toward protecting LGBT persons under sex discrimination law in light of this.

U.S. EQUAL EMP. OPPORTUNITY COMMISSION, supra.

145. See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (resolving whether

the Civil Rights Act prohibited the creation of a “hostile work environment” or if it was

limited to tangible economic discrimination in the workplace).

146. Id. (quoting L.A. Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978))

(emphasis added).

147. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).

148. Id. at 79.

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Black hair discrimination—only reinforces the point that the harms

to Black women as a group remain largely invisible. What is clear,

however, is that the same arguments are unlikely to produce the

desired results. The courts are not convinced. They may never be.

But perhaps it is time to look beyond unequal treatment and

disparate impact analysis and begin to push an unequal burden

analysis typical of sex and sex-plus discrimination cases.

B. Crafting a New Jurisprudence Based on Undue Burden

There is nothing in the drafting of Title VII or § 1981 that de-

mands that race, color, sex, religion, or national origin be mutually

exclusive. It is telling that when it comes to Black women’s hair,

federal jurisprudence has rejected that a Black woman might have

a combined claim based on both her race and sex. In Lam v.

University of Hawaii, the Ninth Circuit held that the lower court

erred when it treated the claim of an Asian woman in terms of

either race or sex.

149

They further held that the lower court should

have considered whether discrimination occurred because of the

plaintiff’s race and sex combined.

150

A combined consideration of

both sex and race might help to highlight the difference in treat-

ment and impact that Black women face in presenting a professional

look at work.

Even beyond unequal treatment and disparate impact, argumen-

tation should push toward a greater emphasis on an unequal burden

analysis, which more appropriately combines intersections in dis-

crimination analysis. This might be applied as between Black

women and women of other races such as in sex-plus cases where

a pregnant woman might have a different burden, or even unequal

treatment, compared to non-pregnant women. Additionally, it

might be applied as between Black women and men.

To illustrate, in Jespersen v. Harrah’s Operating Company, Inc., a

White female plaintiff sued her employer for its grooming policy,

which required women to wear makeup and wear their hair down.

The court ruled that it would not take notice of the burden the

woman faced in complying with the policy because she had not

149. Lam v. Univ. of Haw., 40 F.3d 1551, 1561–62 (9th Cir. 1994).

150. Id.

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933 Black Women’s Hair: Another Way Forward

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presented the necessary statistics to back up her claim, that

following the grooming policy was significantly harder or unrea-

sonable for her.

151

The court reasoned that it was not unreasonable

for her to wear her hair down or to wear makeup.

But what if Jespersen were a Black woman being asked to

comply with a policy that mandated her hair always be worn

down? We have already established that Black hair does not

naturally grow downward because the curl pattern creates a

density that makes the hair go outward and upward. Weighing the

hair down involves styling it in braids, dreadlocks, twists, or

significantly altering the natural curl pattern through straightening

with heat and chemicals. All of this is at no insignificant burden in

time and cost. While personal grooming for women tends to be

more than for men, the cost of hair grooming for women to comply

with a “hair down” policy is significantly higher for Black women

than for other races of women.

152

“Black women, in particular,

spend an estimated $7.5 billion annually on beauty products,

shelling out 80% more on cosmetics and twice as much on skin care

as their non-Black counterparts.”

153

Even the cost at individual hair

salons is more with one woman noting that she pays twenty dollars

more than non-Black women to get her hair done, a practice

generally known as the black tax.

154

A prominent Black female

blog notes:

Some of our favorite styles are some of our costliest.—

hundreds, if not thousands of dollars annually. Take a minute to

crunch the numbers and when you do, consider the following:

For Weaves and Braids

> the number of packs of hair you will need for your head

> the type of hair you want (synthetic vs. human)

> how often you want the weave or braids redone

> the labor that your stylist charges you

151. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1109–12 (9th Cir. 2006).

152. Taylor Bryant, How the Beauty Industry Has Failed Black Women, REFINERY29,

(Feb. 27, 2016, 4:00 PM), http://www.refinery29.com/2016/02/103964/black-hair-care

-makeup-business.

153. Id.

154. Ashley Weatherford, Why Do My Salon Visits Cost More Because I’m Black?, THE CUT

(Nov. 19, 2014), https://www.thecut.com/2014/10/why-do-my-haircuts-cost-more-because

-im-black.html.

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For Perms

> the cost and frequency of a retouch (for perms)

> the cost and frequency of a wash & set (for perms)

For Locs

> the cost of one-time fee for beginning locs

> the cost and frequency of streaming, deep conditioning, and

styling

Don’t forget to tack on the cost of hair products, accessories, tip,

food, transportation and childcare!

155

All of this amounts to a burden that is beyond comprehension.

As the dissent in Jespersen noted:

It might have been tidier if Jespersen had introduced evidence

as to the time and cost associated with complying with the

makeup requirement, but I can understand her failure to do so, as

these hardly seem like questions reasonably subject to dispute.

We could—and should—take judicial notice of these incontro-

vertible facts.

Alternatively, Jespersen did introduce evidence that she finds

it burdensome to wear makeup because doing so is inconsistent

with her self-image and interferes with her job performance. My

colleagues dismiss this evidence, apparently on the ground that

wearing makeup does not, as a matter of law, constitute a sub-

stantial burden. This presupposes that Jespersen is unreasonable

or idiosyncratic in her discomfort. Why so? Whether to wear

cosmetics—literally, the face one presents to the world—is an

intensely personal choice. Makeup, moreover, touches delicate

parts of the anatomy—the lips, the eyes, the cheeks—and can

cause serious discomfort, sometimes even allergic reactions, for

someone unaccustomed to wearing it.

156

What is more, Black women tend to be criticized and ostracized

for not adjusting to societal norms and expectations and expending

the great costs in maintaining hairstyles that are appropriate.

Rosette and Dumas chronicle the extraordinary burden that

155. Kara Stevens, Split Ends: Black Women, Money, and the Cost of Hair Care, FOR HARRIET

(Nov. 9, 2012), http://www.forharriet.com/2012/11/spilt-ends-black-women-money-and

-cost.html#ixzz51rCDL2B7.

156. Jespersen, 444 F.3d at 1117 (internal citation omitted).

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933 Black Women’s Hair: Another Way Forward

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conforming to straight hairstyles places on Black women. They note

that most Black women straighten their hair at a cost of approx-

imately $50 million a year on chemical straighteners.

157

All of this

comes at a huge emotional cost from forcing their being into an

unnatural state and takes no account for the texture or socio-

cultural relevance of hair to Black identity and to a feeling of Black

empowerment in a world that is geared toward Black sociocultural

subordination.

Even more than the cost, the risk of damage to Black hair is

astounding and severe. Chemical and heat damage can produce

balding and burns on the scalp.

158

The fact that the Jespersen court

did not even consider the burden on Black women as a part of the

class of women is telling about the innate invisibility of the hard-

ships that the bias and stereotypes against Black hair cause to Black

women. Nevertheless, as research is growing on the costs, risks,

and burdens in maintaining straightened styles, Black women

might be able to prove the discriminatory nature of policies that

force them to straighten their hair.

Another avenue that should be explored is seeking to raise the

bar at the state level. The next Part briefly analyzes state-level

protections for Black hair and advocates for social change at

this level.

IV. STATE EMPLOYMENT DISCRIMINATION PROTECTION:

TOWARD A HIGHER STANDARD

While federal laws provide the baseline of protections available,

many states have offered protections that go beyond Federal Civil

Rights Acts, as well as expanded the list of protected classes. No

state has offered protections for Black textured hairstyles beyond

what is already contained in federal law, but this does not mean

that doing so is impossible. Rather, the absence might highlight the

lack of awareness and focus at the state level—if not shared

complacency. Minority interests have usually been best protected

at the federal level with the highest form of civil engineering being

157. Rossette & Dumas, supra note 9, at 411.

158. See GoodHairMovie, Good Hair ft. Chris Rock–HD Official Trailer, YOUTUBE (July 31,

2009), https://www.youtube.com/watch?v=1m-4qxz08So.

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getting a case brought up to the level of the Supreme Court where

a positive decision becomes the law of the land. The famous legal

civil rights activists routinely attempted to get cases appealed up to

the Supreme Court.

159

The zeitgeist might be making this type of

legal activism more difficult, as civil rights activism becomes more

diametrically opposed and as judicial views at the highest level lean

toward conservatism.

160

Smaller safe spaces may be carved out at the local political level

rather than the federal judiciary. This is not unheard of, although it

would require a coordinated and persistent campaign. There are

many areas in which protections have been extended. For example,

as of 2016, twenty states explicitly offered protections against

discrimination based on sexual orientation and gender identity.

161

Twenty-one states offered protections against discrimination based

on marital status.

162

Minnesota and North Dakota protect against

discrimination based on public assistance status.

163

Minnesota also

provides protections for medical marijuana usage and creed in

addition to religion.

164

New Mexico offers protections for ancestry

in addition to national origin.

165

North Carolina offers protection

for persons with the sickle-cell trait or hemoglobin C.

166

Oklahoma

has protections based on genetic information.

167

Oregon has a host

159. E.g., the education desegregation legal battles.

160. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719

(2018). Currently, the Supreme Court has a majority of justices with conservative views.

161. Employment Discrimination Law in the United States, WIKIPEDIA, https://en.wikipedia

.org/wiki/Employment_discrimination_law_in_the_United_States#State_law (last visited

Jan. 1, 2019) (States and territories include California, Colorado, Connecticut, Delaware,

Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hamp-

shire, New Jersey, New York, Oregon, Rhode Island, Utah, Vermont, Washington, Guam,

and Puerto Rico.); see, e.g., Employees and Job Applicants Are Protected from Bias, CAL. DEP’T

FAIR EMP. & HOUSING, https://www.dfeh.ca.gov/Employment/ (last visited Jan. 1, 2019)

(including gender identity and sexual orientation as classes protected from discrimination).

162. Employment Discrimination Law in the United States, supra note 161 (States include

Alaska, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Maryland, Michigan,

Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York,

North Dakota, Oregon, Washington, and Wisconsin, with the District of Columbia.).

163. MINN. STAT. § 363A.08(1) (2012); N.D. CENT. CODE § 14-02.4-01 (2017).

164. MINN. STAT. § 363A.08(1) (2012).

165. State Laws on Employment-Related Discrimination, NAT’L CONF. ST. LEGISLATURES,

http://www.ncsl.org/research/labor-and-employment/discrimination-employment.aspx

(last visited Jan. 1, 2019).

166. Id.

167. Id.

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933 Black Women’s Hair: Another Way Forward

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of factors upon which employment discrimination is prohibited

including, among others, breathalyzer tests, degrees in theology

and religious occupations, victims of domestic violence or sexual

crimes, and credit history.

168

Michigan disallows discrimination

based on height, weight, and marital status.

169

Federal legislation

was never meant to be the pinnacle of protections that may be

applied but rather is a baseline. It was contemplated that states in

their autonomy could offer protections well above the fed-

eral fundamentals.

In state legislatures, passing laws that protect against racial

discrimination based on hair is more feasible given the ability to

assert more targeted pressure. State-level protections have proven

to provide protection against discrimination across a wider cross

section of subgroups; protections for Black hair is ripe for more

localized social engineering; and doors for change may very well

open to the legislature and not to the judiciary.

V. CONCLUSION

Racial discrimination against Black women is real and based on

deep-rooted and long-standing racial biases and implicit stereo-

types. Moving forward requires understanding this history and its

contemporary effects on the status of Black women in employment.

While federal antidiscrimination law prohibits discrimination on

the basis of race, federal courts have routinely denied that these

protections extend to the vast majority of Black textured hairstyles—

with the only potential exception being the afro.

Antidiscrimination suits against workplace grooming policies

that outright ban dreadlocks, twists, braids, and cornrows, or pol-

icies that require neat, clean, kept, and professional styles (that are

then interpreted to exclude dreadlocks, twists, braids, and corn-

rows), have largely been unsuccessful. There have been essentially

forty years of failure with no change of pattern in sight. This does

not mean that Title VII itself is problematic or that Black women

should give up on it. Instead, new ways of arguing must be

engendered that reshape the jurisprudence of Title VII. Arguments

closer to sex discrimination jurisprudence might make some

168. Id.

169. See MICH. COMP. LAWS § 37.2202(1)(a) (2013).

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headway in securing protections. Additionally, Black women and

allies should put more focus on state protections and lobby at the

state legislative level to carve out safe spaces and provide examples

that might then be argued at the federal level to end the indignity

and discrimination that Black women face daily in the workplace.

Crystal Powell

* J.D., April 2018, J. Reuben Clark Law School, Brigham Young University. Thank

you to Professor Michalyn Steele for supervising this Note, providing value insights, and

encouraging my growth in civil rights law. Thank you to my friends and family for their

support and especially my wonderful son, Reuben Jude Alexander Britton.