This month an appellate court held that a policy prohibiting dreadlocks in the workplace did not intentionally discriminate against African Americans. If the world was black and white, then a hairstyle would not define a race or ethnicity of people as non-African Americans have appropriated the use of dreadlocks, and not all African Americans wear dreadlocks. Since, however, the world is often grey and this policy undoubtedly targets African Americans far more than other races or ethnicities, the law forbids the use of policies to implicitly, even if not intentionally, discrimination against a protected class in the workplace. Therefore, while the claim presented by the EEOC was wrong, the disparate impact such policy has among African Americans is a viable claim of discrimination. Succinctly, the EEOC filed a correct action of discrimination, but argued the wrong standard to support its claim.
Catastrophe Management Services (CMS) was a claims processing company seeking candidates for customer service representative positions. The position performs services over the phone and requires no face to face interactions with customers. Ms. Jones, the subject of the lawsuit, applied, interviewed, and received an offer of employment with CMS. While collecting new hire paperwork, the Human Resources representative inquired whether her hair was dreadlocked, and informed her that CMS would not continue to employ her unless she cut them. When asked for an explanation, the representative stated “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” Ms. Jones refused and CMS rescinded its offer. Ms. Jones subsequently filed a charge of discrimination with the EEOC and it held there was evidence to support discriminatory conduct by CMS.
Because the EEOC alleged that CMS treats African Americans differently than members outside of that class because of race, the Court and the EEOC spent a considerable amount of time discussing the history of dreadlocks as well as the definition of race. Succinctly, the term dreadlocks originated from the African slave trade, and race has no clear definition but does extend to characteristics that an individual cannot change but not their “cultural practices.” Therefore, the court held that because Black people can change their hairstyles, a company’s policy prohibiting styles traditionally associated with their culture does not amount to intentional discrimination. The flaw in this argument, however, is that it makes it okay to require a protected group of people to abandon the natural state of their hair and assimilate to another culture’s preference. But that’s a story for another article.
Courts have held that non-discriminatory policies that have a negative and disproportionate adverse affect on members of a protected class violate federal anti-discrimination law. Unlike a disparate treatment claim, disparate impact claims do not require proving intentional discrimination or defining race, but rather showing that a policy has directly and disproportionately targeted a protected group, and application of such policy is not required to perform the job. Clearly this applies to the case at hand. The customer service representative position was not public facing. Even if it was, Ms. Jones interviewed and received an offer without issue proving her appearance met workplace standards. Furthermore, the HR representative had no knowledge of her hairstyle until confirmed by Ms. Jones herself. If Ms. Jones could show that the policy has in fact disproportionately impacted African Americans, she has a viable discrimination claim. As often happens in these cases, the public backlash and scrutiny may eradicate such policies in the workplace. Until then, let’s hope to get it right the next time.