*Katryna Santa Cruz

Picture this: A Black woman working at American Airlines for the past eleven years wears her hair in cornrows to work one day.[1] She is told that her hairstyle violates the company policy on grooming and appearance and thereby, she must hide her hairstyle in a bun and under a hair piece.[2] The woman sues for race discrimination on the basis that the company policy violates her rights under Title VII of the Civil Rights Act of 1964.[3] The Southern District of New York disagreed.[4] In defiance of a surplus of historical and cultural accounts of the close association between being Black and wearing cornrows, the court held that “[cornrows are] an ‘easily changed characteristic,’ and, even if socioculturally associated with a particular race or nationality, is not an impermissible basis for distinctions in the application of employment practices by an employer.”[5] The court condemned policies prohibiting “the ‘Afro/Bush style,’” but concluded that since cornrows were recently popularized[6] by White actress Bo Derek in the film 10, the policy did not only affect Black women.[7] The court’s latter point birthed the “Bo Derek defense”: where a particular hairstyle or trait can be culturally appropriated by members of a different race, that hairstyle or trait no longer belongs to the race who originated it or has used it as a means of self-identification for hundreds of years.

Even where a plaintiff provides more explicitly-racist evidence, courts continuously refuse to hold that adverse employment actions made on the basis of an employee’s or applicant’s natural hair or Black hairstyle are a form of race discrimination under any given legal framework—whether the plaintiff provides indirect or direct proof of discrimination. For example, in Stepp v. Rexnord Industries,[8] a plaintiff who wore dreadlocks to his interview alleged that he overheard the manager that denied him employment state: “[I] just couldn’t get past the hair.”[9] The court held that such a reference to the plaintiff’s hairstyle does not support an inference that the manager discriminated against the plaintiff based on his race.[10] Thus, the plaintiff could not prove race discrimination via the direct method of proof.

In Eatman v. UPS,[11] a plaintiff attempted to establish race discrimination through the indirect method of proof using the McDonnell Douglas[12] framework. The plaintiff introduced evidence that once he started wearing “[dreadlocks], various managers told him that he looked like an alien and like Stevie Wonder, twice compared his hair to ‘shit,’ equated his hair with ‘extracurricular’ drug use, requested a pair of scissors (as if to cut off the locks), and pulled his hair[.]”[13] The court stated that, even “assum[ing] . . . that he was fired under circumstances giving rise to an inference of racial discrimination[,]” UPS’s legitimate, non-discriminatory reason—that UPS terminated the plaintiff because of his “refusal to comply with the company’s appearance guidelines”—required granting summary judgment in favor of UPS.[14]

While all fifty states have passed legislation prohibiting discrimination because of race, each statute—with the exceptions of New York, California, and New Jersey—fails to define “race.” The dangers of failing to define race and, further, include hair texture and hairstyles as part of the definition, leads to the arbitrary line-drawing shown above.[15] By the current logic employed by courts, the only instance in which a Black person may have a cause of action for discrimination is when an employer discriminates against them because of their hair texture, but not because of their hairstyle. Such a razor-thin distinction blatantly disregards the well-documented and well-known association between race and hairstyle,[16] and it allows nuanced discrimination to slip through the cracks of civil rights laws.

So, what does a Black plaintiff have to do in order to get a court to recognize that hair discrimination is race discrimination? Vote. Earlier this year, the New York City Commission on Human Rights affirmed that “grooming or appearance policies that ban, limit, or otherwise restrict natural hair or hairstyles associated with Black people generally violate the [New York City Human Right Law’s] anti-discrimination provisions.”[17] California followed suit when it passed the “CROWN (Creating a Respectful and Open World for Natural Hair) Act.”[18] Not long after, Senator Sandra Cunningham of New Jersey modeled Assembly Bill No. 5564[19] after California’s CROWN Act. New Jersey is expected to become the third state to recognize hair discrimination as a form of race discrimination and prohibit its role in employment practices. Clearly, it is time for the rest of our nation to recognize that biases and prejudices are rarely ever made explicit anymore and that targeting a sociocultural characteristic of any race is targeting persons of that race. Courts’ failure to condemn such actions officially constitutes their condoning of race-based discrimination.

*J.D. Candidate, 2020, Florida International University College of Law

[1] Facts taken from Rogers v. Am. Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1981).

[2] Id. at 233. To add insult to injury, the court suggests wearing a “larger hairpiece” in response to the plaintiff’s allegation that wearing the hairpiece causes her severe headaches. Id.

[3] Id. at 231.

[4] Id. at 232.

[5] Id.

[6] Keep in mind that Stone Age rock paintings in the Tassili Plateau of the Sahara dating 3500 BCE feature Black women wearing cornrows. See Barbara Herman, The Wild, Amazing, True History of Braids, Refinery 29 (Mar. 22, 2013, 4:20 PM), https://www.refinery29.com/en-us/44603#slide-1.

[7] Rogers, 527 F. Supp. at 232.

[8] No. 1:13-cv-00683-TWP-MJD, 2014 U.S. Dist. LEXIS 169951, at *17 (S.D. Ind. Dec. 9, 2014).

[9] Id.

[10] Id. at 18.

[11] 194 F. Supp. 2d 256, 263 (S.D.N.Y. 2002).

[12] McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

[13] Eatman, 194 F. Supp. 2d at 264.

[14] Id.

[15] See also EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1030 (11th Cir. 2016) (holding that a Black woman with dreadlocks was not discriminated against “because of race” because Title VII protects persons with respect to their immutable characteristics, but not their cultural practices).

[16] See, e.g., Monica C. Bell, The Braiding Cases, Cultural Deference, and the Inadequate Protection of Black Women Consumers, 19 Yale J.L. & Feminism 125 (2007); 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 (2016); Kimberly J. Norwood, Global Perspectives on Colorism: “If You Is White, You’s Alright…” + Stories About Colorism in America, 14 Wash. U. Global Stud. L. Rev. 585 (2015).

[17] N.Y. City Commission on Hum. Rts., New York City Commission on Human Rights Legal Enforcement Guidance on Race Discrimination 2 (Feb. 2019), available at https://www1.nyc.gov/assets/cchr/downloads/pdf/Hair-Guidance.pdf.

[18] S.B. 188 (Cal. 2019), available at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB188.

[19] A.B. 5564, 218th Leg., Reg. Sess. (N.J. 2019), available at https://www.njleg.state.nj.us/2018/Bills/S4000/3945_I1.HTM.