We have discussed whether an employer can require an employee to get a haircut, and explained that in most situations, an employer may do so. But what if that hairstyle is associated with a particular ethnic group? For example, can an employer refuse to hire an African-American employee who has dreadlocks? Or would this be a violation of Title VII of the Civil Rights Act, which prohibits employers from discriminating against employees because of their race?
A court recently had to make such a decision. The case involved an African-American woman came to a job interview wearing her hair in short dreadlocks. After the interview, the HR manager informed the woman of the employer’s policy in regards to hairstyles, which stated that “hairstyles should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.” The HR manager told the woman that her hairstyle violated this policy, and that she would not be hired unless she cut her dreadlocks. The woman refused to do so, and, the employer refused to hire her.
The woman filed a complaint with the Equal Employment Opportunity Commission (EEOC), contending that the employer engaged in racial discrimination in its refusal to hire her. The EEOC filed suit against the employer, arguing that because dreadlocks are closely associated with African-American racial identity, refusing to hire an employee because she has dreadlocks is a violation of Title VII. “Because of the historical truths and experiences of African-Americans, it is only prudent for courts to recognize that African-American hair identity is rooted in African tradition,” the EEOC wrote. “As such, natural styles are as much of a determinate of racial identity as melanoid skin.”
The court, however, rejected this argument. It held that Title VII only prohibits discrimination based on immutable characteristics, like skin color. “A hairstyle is not inevitable and immutable,” the court wrote. “Title VII does not protect against discrimination based on traits, even a trait that has socio-cultural significance.”
The court also rejected the EEOC’s argument that the definition of race should be expanded to include cultural characteristics, holding that doing so could lead to “absurd” results. “For instance, a policy prohibiting dreadlocks would not apply to African Americans but would apply to whites,” the court noted.
The takeaway from this case is that employers can regulate things like dress, hairstyle, and other characteristics that employees can change without fear of violating Title VII or other federal employment laws (although dress and appearance based on religion is a trickier subject). Characteristics that employees cannot change, like, for example, hair texture, cannot be regulated. So, employers cannot require an employee with naturally curly hair to wear it straight.
Another takeaway from this case is that the EEOC is aggressively enforcing federal employment laws, often taking novel positions that have not been endorsed by courts. Employers need to be extra-careful right now in the way that they handle employees in order to avoid running afoul of the EEOC. Employers should consider contacting an attorney before making any employment decisions that might get the EEOC’s attention.
