Equal Employment Opportunity Commission v. Catastrophe Management Solutions , 876 F.3d 1273 ( 2017 )

Case: 14-13482 Date Filed: 12/05/2017 Page: 1 of 41
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13482
________________________
D.C. Docket No. 1:13-cv-00476-CB-M
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff - Appellant,
versus
CATASTROPHE MANAGEMENT SOLUTIONS,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and
JILL PRYOR, Circuit Judges.*
*
Judge Kevin C. Newsom, who joined the Court on August 4, 2017, did not participate in the en
banc poll that was conducted in this case.
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BY THE COURT:
A petition for rehearing having been filed and a member of this Court in
active service having requested a poll on whether this case should be reheard by
the Court sitting en banc, and a majority of the judges in active service on this
Court having voted against granting a rehearing en banc, it is ORDERED that this
case will not be reheard en banc.
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JORDAN, Circuit Judge, concurring in the denial of rehearing en banc:
Catastrophe Management Solutions does not hire anyone, black or white,
who uses an “excessive hairstyle[ ],” a category that includes dreadlocks. So when
Chastity Jones, a black woman, refused to remove her dreadlocks, CMS rescinded
her employment offer. The EEOC sued on her behalf, claiming that “[a]
prohibition of dreadlocks in the workplace constitutes race discrimination because
dreadlocks are a manner of wearing the hair that is physiologically and culturally
associated with people of African descent.” D.E. 21-1 at ¶ 28 (EEOC’s proposed
amended complaint). The EEOC’s lawsuit, in other words, sought to expand the
definition of “race”—a term undefined in Title VII—to include anything
purportedly associated with the culture of a protected group.
The district court dismissed the case, and a panel of this court affirmed
because the EEOC’s complaint did not allege—as required by our Title VII
disparate-treatment precedent—that dreadlocks are an immutable characteristic of
black individuals. See Equal Employment Opportunity Comm’n v. Catastrophe
Mgmt. Sols., 852 F.3d 1018, 1021, 1028–30 (11th Cir. 2016) (applying Willingham
v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975) (en banc), and Garcia v.
Gloor, 618 F.2d 264 (5th Cir. 1980)). A majority of this court has declined to
rehear the case en banc, prompting Judge Martin to dissent from the denial of
rehearing with a thoughtful critique of the panel opinion.
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But as insightful as Judge Martin’s dissent is, and as difficult as the issues
presented are, dismissing the complaint was the correct legal call. Under our
precedent, banning dreadlocks in the workplace under a race-neutral grooming
policy—without more—does not constitute intentional race-based discrimination.
First, dreadlocks are not, according to the EEOC’s proposed amended complaint,
an immutable characteristic of black individuals. Second, the allegations in the
complaint do not lend themselves to a reasonable inference that, in applying its
grooming policy to dreadlocks, CMS discriminated against Ms. Jones because of
her race.
*****
To start, I think Judge Martin overstates what the Supreme Court held in
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). She says that a majority of the
Court in Price Waterhouse allowed the plaintiff to claim disparate treatment for
behavior she could have changed. And that, she contends, cannot be squared with
Willingham and its immutability requirement. Her argument draws exclusively
from the four-justice plurality opinion, which she says constitutes the holding of
the case because Justice White and Justice O’Connor, each of whom concurred in
the judgment, did not dispute the plurality’s rationale. Assuming that is the correct
reading of the concurring opinions, I believe Price Waterhouse and our decision in
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Willingham can be reconciled because the Price Waterhouse plurality did not hold
that Title VII protects mutable characteristics.
In Price Waterhouse, Ann Hopkins, a woman, sued for sex discrimination
when she was denied partnership at a well-known accounting firm. Although there
was evidence that the firm’s partners had disparaged Ms. Hopkins’ demeanor as
insufficiently feminine, Price Waterhouse seemed to argue on appeal that such
comments were irrelevant for Title VII purposes. See Price Waterhouse, 490 U.S.
at 250–51. The plurality rejected that argument, explaining that while stereotyped
remarks did not “inevitably prove” a disparate-treatment claim, they could
“certainly be evidence” that the firm “actually relied on [Ms. Hopkins’] gender in
making its [employment] decision,” in violation of Title VII. See id. at 251
(emphasis in original).
Put differently, the Price Waterhouse plurality made the unremarkable
observation that, when an employer makes a decision based on a mutable
characteristic (demeanor) that is linked by stereotype (how women should behave)
to one of Title VII’s protected categories (a person’s sex), the decision may be
impermissibly based on the protected category, so the attack on the mutable
characteristic is legally relevant to the disparate-treatment claim. But a plaintiff
must still ground her disparate-treatment claim on one of the protected Title VII
categories, which Willingham tells us are immutable.
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In my view, Price Waterhouse did not elevate mutable features, independent
of a protected category, to protected status. See Jespersen v. Harrah’s Operating
Co., 444 F.3d 1104, 1111 (9th Cir. 2006) (en banc) (interpreting Price Waterhouse
as a mixed-motive discrimination case in which the Supreme Court clarified that
stereotypes can serve as evidence that an employer unlawfully considered sex in
making an employment decision); Chapman v. AI Transp., 229 F.3d 1012, 1036
(11th Cir. 2000) (en banc) (distinguishing between a mutable trait and an
“impermissible consideration”—that is, a protected category). And because it did
not, merely prohibiting a mutable characteristic does not, as Judge Martin and the
EEOC argue, constitute discrimination.
Title VII, the Supreme Court has told us, is not “a general civility code for
the American workplace.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80
(1998)). It requires courts to determine whether a particular policy is
discriminatory, but not whether it is ideal or fair. The panel here was not tasked
with addressing whether CMS’ grooming policy is enlightened, or whether it
makes sense in our multicultural and evolving society. The panel decided only
whether the EEOC sufficiently alleged a Title VII disparate-treatment claim under
Supreme Court and Eleventh Circuit precedent.
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*****
Judge Martin takes aim at a purported internal consistency in the panel
opinion, arguing that, if immutability is the rule, the panel provided two different,
conflicting definitions of the term. The first is that an immutable trait is something
“beyond the victim’s power to alter,” a phrase the panel quoted from the binding
Former Fifth Circuit decision in Garcia. Judge Martin maintains that this
definition is inconsistent with the panel’s reliance on Jenkins v. Blue Cross Mut.
Hosp. Ins., Inc., 538 F.2d 164 (7th Cir. 1976) (en banc), which recognized a
race-discrimination claim for a black plaintiff who alleged she was denied
promotion for wearing an afro, because both afros and dreadlocks can be altered.
Given this supposed inconsistency, Judge Martin concludes that the panel actually
defined immutable as “naturally occurring,” and argues that the complaint
sufficiently alleged that dreadlocks occur naturally in black individuals’ hair.
The panel opinion isn’t as confusing as Judge Martin makes it seem. The
two definitions provided are not at odds because the panel used the phrase “beyond
the victim’s power to alter” to refer to a trait that a person cannot change
permanently because it is present from birth. See THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE 878 (4th ed. 2009) (defining “immutable”
as “[n]ot subject or susceptible to change”). The opinion, in so many words, made
this abundantly clear. See, e.g., Catastrophe Mgmt., 852 F.3d at 1026–27. This is
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also what courts after Willingham have understood immutability to mean. See,
e.g., Earwood v. Cont’l Se. Lines, Inc., 539 F.2d 1349, 1351 (4th Cir. 1976)
(following Willingham and explaining that “discrimination based on . . . immutable
sex characteristics . . . violate[s] [Title VII] because they present obstacles to
employment of one sex that cannot be overcome”) (emphasis added). Indeed,
when the Former Fifth Circuit in Garcia employed the phrase, it gave as examples
a person’s “place of birth” and “the place of birth of his forebears.” See Garcia,
618 F.2d at 269.
Judge Martin’s critique of the panel opinion conflates altering a
characteristic with masking it. Those two concepts are distinct; if a trait can be
masked momentarily but will eventually revert to its natural state, it is immutable
because it is “beyond the [person’s] power to alter.”
According to Judge Martin, the panel also differentiated between dreadlocks
and afros based on “its own notion that the only natural black hair is an [a]fro.”
The panel, however, accepted that an afro was the natural state of Ms. Jenkins’ hair
because Ms. Jenkins said it was. Ms. Jenkins had alleged that, after years of
manipulating her hair into different styles, she suffered racial discrimination only
when she allowed her hair to revert to its “natural . . . style”—an afro. See
Jenkins, 538 F.2d at 167 (emphasis added).
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Here the EEOC presented a completely different theory of discrimination in
its proposed amended complaint. It asserted that dreadlocks are protected under
Title VII because they are culturally and physiologically associated with
individuals of African descent. Even if this somehow does not constitute
abandonment of the argument that dreadlocks are an immutable characteristic of
black individuals, the complaint failed to assert that dreadlocks are a black
individual’s hair in its natural, unmediated state.
*****
Judge Martin cites to portions of the complaint she believes alleged that
dreadlocks occur naturally. But when read in context, the allegations Judge Martin
cites to do not support her position. The complaint’s thesis is that dreadlocks are a
hairstyle that is suitable for black individuals’ hair, and the snippets she selects are
not to the contrary. See, e.g., D.E. 21-1 at ¶ 19, 26, 28.
For example, one of the allegations Judge Martin cites is that “[d]readlocks
are formed in a [b]lack person’s hair naturally, without any manipulation.” Id. at
¶ 19. This phrase, however, comes after the introductory sentence of that
paragraph, which states that “[d]readlocks [are] a manner of wearing hair that is
common for [b]lack people and suitable for [b]lack hair texture,” and is followed
by an acknowledgment that dreadlocks can be formed “by the manual
manipulation of hair into larger coils of hair.” Id. Indeed, the complaint’s
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references to the “natural texture” of black individuals’ hair, id. at ¶ 27, which
“naturally grows in very tight coarse coils,” id. at ¶ 22, are assertions embedded in
a section of the complaint dedicated to explaining the uniqueness of black hair and
the challenges black individuals face when it comes to their hair styling choices.
See id. at ¶ 22–27. That section of the complaint reiterates that “dreadlocks are a
method of hair styling suitable for the texture of black hair and culturally
associated with [b]lack people.” See id. at ¶ 26. Finally, the complaint’s
description of dreadlocks as “physiologically and culturally associated with people
of African descent,” id. at ¶ 28, is similarly followed by the statement that
dreadlocks are “a manner of wearing hair that is suitable to the texture of [b]lack
hair.” Id.
In sum, the allegations cited by Judge Martin do not support the claim that
dreadlocks are naturally occurring. To the contrary, the complaint faithfully
reflects the overarching theme of the EEOC’s Title VII theory—that dreadlocks are
a protected cultural choice—and it was on that theory that the panel resolved the
case.
*****
Judge Martin contends that, even if banning dreadlocks isn’t per se race
discrimination, the complaint plausibly stated that CMS used dreadlocks as a
pretext for not hiring Ms. Jones on account of her race. Analogizing to Price
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Waterhouse, she argues that a ban on dreadlocks is a proxy for not employing
black individuals because the two, according to the complaint, are associated by a
stereotype that black individuals’ hair is unprofessional.
This case, however, is very different from Price Waterhouse. In Price
Waterhouse, Ms. Hopkins plausibly stated a claim of intentional sex discrimination
because the firm’s partners had, on multiple occasions, made it clear that their
primary grievance—what they described as Ms. Hopkins’ “over[ ]
aggressive[ness]” and “macho” demeanor—was that a woman was displaying traits
stereotypically associated with men. See Price Waterhouse, 490 U.S. at 235. They
were not shy about it either; one partner even admitted that the other partners only
objected to Ms. Hopkins’ prodigious swearing “because it’s a lady using foul
language.” Id.
CMS’ prohibition against dreadlocks, by contrast, is based on a race-neutral
policy that applies with equal force to men and women (and hairstyles) of all races.
So, unlike the situation in Price Waterhouse, the policy against the allegedly
stereotypical characteristic (dreadlocks) is unmoored from the protected category
(Ms. Jones’ race). See Brown v. D.C. Transit Sys., Inc., 523 F.2d 725, 728 (D.C.
Cir. 1975) (holding that, unless there is evidence of pretext or bad faith, “[t]he
wearing of a uniform, the type of uniform, the requirement of hirsute conformity
applicable to whites and blacks alike, are simply non-discriminatory conditions of
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employment”) (emphasis added). See also Jespersen, 444 F.3d at 1111 (holding
that gender-based grooming policy did not constitute “[i]mpermissible sex
stereotyping” in part because comparable grooming requirements applied equally
to all employees, “male and female”). And although the complaint alleged that
black individuals wear dreadlocks more often than persons of other racial groups,
that assertion makes more sense in the context of a disparate-impact claim, which
considers whether one group of people is disproportionately affected by a facially-
neutral policy. But that theory of Title VII liability is not at issue here because the
EEOC declined to pursue it.
*****
The EEOC brought this case on behalf of Ms. Jones in the hopes that we
would do what neither it (through its rulemaking authority), nor Congress, nor any
other court has done: update the meaning of race in Title VII to reflect its
increasingly nebulous (and disputed) boundaries. But there is no legal or factual
agreement on where those boundaries lie, and Judge Martin and the EEOC do not
pretend otherwise. Debates rage in the academy (as well as in society) over
whether race is biological, cultural, consensus-based, or some or none of the
above; over who gets to make the call about the meaning of race; and over how
concepts associated with race (including cultural traits) are treated. See
Catastrophe Mgmt., 852 F.3d at 1033–34 (collecting some of the literature). There
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is even disagreement over whether dreadlocks are exclusively (or even primarily)
of African descent. See BERT ASHE, TWISTED: MY DREADLOCK CHRONICLES 36
(2015) (“The first written evidence of dreadlocks is in the Vedic scriptures, which
are of Indian origin[,] . . . [and] were developed and written about 2,500 years
ago[.]”).
As far as I can tell, the position advocated by the EEOC could reduce the
concept of race in Title VII to little more than subjective notions of cultural
appropriation. See Initial Br. of EEOC at 35–37 (arguing that Title VII shields
symbols of racial pride, as defined by the user). Perhaps this view reflects the
future of Title VII, but if so, Congress is the proper entity through which to effect
such significant change.
For the time being, we are left with Supreme Court precedent explaining that
discrimination based on stereotypes is circumstantial evidence of discrimination on
the basis of a protected category, and with circuit precedent telling us that
protected categories and characteristics must be immutable. Those two lines of
authority, in my opinion, are not mutually exclusive.
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MARTIN, Circuit Judge, with whom ROSENBAUM and JILL PRYOR, Circuit
Judges join, dissenting from the denial of rehearing en banc:
Chastity Jones, a black woman, applied for a position at Catastrophe
Management Solutions (“CMS”). She got the job. But after she was hired, the
human resources manager—who is white—told Ms. Jones the company had to
rescind its job offer because she wore her hair in dreadlocks. The manager told
Ms. Jones the problem with dreadlocks is “they tend to get messy,” but at the same
time recognized that Ms. Jones’s own dreadlocks were not messy. Even so, CMS
took away Ms. Jones’s job offer because her hair violated the company’s blanket
ban on dreadlocks.
The Equal Employment Opportunity Commission (“EEOC”) filed suit
against CMS on behalf of Ms. Jones. The complaint alleged that CMS
discriminated against Ms. Jones on the basis of her race, in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. The complaint alleged that
dreadlocks are black hair in its natural, unmanipulated state, and that the natural
texture of black hair carries with it a deeply entrenched racial stereotype that sees
black people as “unprofessional,” “extreme,” and “not neat.” The complaint also
alleged that CMS’s stated reason for banning dreadlocks—“they tend to get
messy”—did not apply to Ms. Jones, as the human resources manager
acknowledged Ms. Jones’s hair was not messy. Thus, the complaint indicated that
CMS’s only reason for refusing to hire Ms. Jones was the false racial stereotype.
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Even with these clear allegations of racial discrimination, the District Court
dismissed this action based on the pleadings alone. See Equal Emp’t Opportunity
Comm’n v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1021 (11th Cir. 2016). This
means, of course, that the courthouse doors were closed to Ms. Jones without
either she or CMS having any opportunity for factual exploration or development
of her claims. On this limited record, then, a panel of this Court affirmed. And
now, despite the startling nature of the precedent created by the panel opinion, a
majority of this Court has voted not to rehear the case en banc. I dissent from that
decision.
The panel held that the complaint failed to state a claim because Title VII
prohibits only discrimination based on “immutable traits” and dreadlocks are not
“an immutable characteristic of black persons.” Id. at 1021. The panel said our
decision in Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975)
(en banc), 1 dictates this conclusion. See Catastrophe Mgmt., 852 F.3d at 1028–30.
I cannot agree. By resting its decision on Willingham’s mutable/immutable
distinction, the panel revives—in fact, expands—a doctrine the Supreme Court
invalidated more than twenty-five years ago in Price Waterhouse v. Hopkins, 490
U.S. 228, 109 S. Ct. 1775 (1989). Even if Willingham’s immutable-trait
1
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding
precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at
1209.
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requirement survived Price Waterhouse, the allegations the EEOC made here on
behalf of Ms. Jones are sufficient to satisfy that requirement and state a Title VII
disparate treatment claim.
I. BACKGROUND
In May 2010, Ms. Jones applied to be a customer service representative at
CMS, a claims-processing company in Mobile, Alabama. Catastrophe Mgmt., 852
F.3d at 1021. The position did not involve any in-person contact with customers.
It called for speaking with customers only over the phone, from a large call center.
Id. Ms. Jones was selected for an in-person interview. Id. She arrived at CMS a
few days later dressed in a business suit. Id. She wore her hair in short
dreadlocks. Id.
First, Ms. Jones interviewed one-on-one with a CMS “trainer.” The trainer
made no mention of her hair, nor did any other CMS employee who saw Ms.
Jones. After her interview, CMS’s human resources manager Jeannie Wilson, a
white woman, informed Ms. Jones and a number of other applicants they had been
hired. Id. Ms. Wilson explained that they would need to complete scheduled lab
tests and paperwork before beginning employment. Id. Ms. Wilson offered to
meet privately with anyone who had a conflict with the time set for the tests. Id.
After the group meeting, Ms. Jones met privately with Ms. Wilson to talk
about a scheduling conflict and request a different date for her lab tests. Id. Ms.
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Wilson told Ms. Jones she could come back to complete the lab work at another
time. Id.
Ms. Jones was about to leave when Ms. Wilson asked her whether her hair
was in “dreadlocks.” Id. Ms. Jones said yes, and Ms. Wilson replied that CMS
could not hire her with dreadlocks. Id. When Ms. Jones asked why her dreadlocks
would be a problem, Ms. Wilson said: “[T]hey tend to get messy, although I’m not
saying yours are, but you know what I’m talking about.” Id. Ms. Jones then told
Ms. Wilson she would not cut her hair off. Id. at 1022. Ms. Wilson responded that
CMS could no longer hire her. Id.
At the time, CMS had a written policy that said: “All personnel are expected
to be dressed and groomed in a manner that projects a professional and
businesslike image while adhering to company and industry standards and/or
guidelines. . . . [H]airstyle should reflect a business/professional image. No
excessive hairstyles or unusual colors are acceptable[.]” Id. It had no formal,
written policy about dreadlocks. Judge Jordan says CMS “does not hire anyone,
black or white, who uses an ‘excessive hairstyle [],’ a category that includes
dreadlocks.” This is surmise on Judge Jordan’s part. Because Ms. Jones’s case
was dismissed based on the face of her pleadings, the record before this Court is
devoid of any evidence about how CMS has ever applied its hair policy to anyone
who is not black.
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II. DISCUSSION
The panel concluded that our previous decision in Willingham required it to
affirm the dismissal of Ms. Jones’s disparate treatment claim. See Catastrophe
Mgmt., 852 F.3d at 1028–30. Willingham addressed an employer policy that
required male employees to keep their hair shorter than shoulder length but
allowed female employees to wear their hair any length. 507 F.2d at 1087–88.
The employer adopted the requirement to avoid the association between “long hair
on men [and] the counter-culture types.” Id. at 1087. The plaintiff was a man who
had been denied a position because his hair was too long. Id. He brought a Title
VII claim alleging that this policy discriminated on the basis of his sex. Id. at
1086. The former Fifth Circuit rejected his claim. It “adopt[ed] the view . . . that
distinctions in employment practices between men and women on the basis of
something other than immutable or protected characteristics do not inhibit
employment opportunity in violation of [Title VII].” Id. at 1092. Because “[h]air
length is not immutable,” the Willingham court reasoned, the plaintiff had no
claim. Id. at 1091–92.
The panel in Ms. Jones’s case reads Willingham to establish a general rule
that Title VII protects against discrimination only if that “discrimination [is] based
on immutable characteristics.” Catastrophe Mgmt., 852 F.3d at 1028. Her panel
then applied this “immutable/mutable distinction” to the EEOC’s complaint. Id. at
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1030. Because the “complaint did not allege that dreadlocks are an immutable
characteristic of black persons,” the panel reasoned, the complaint failed to state a
claim under Title VII. Id. at 1022; see also id. at 1030. In reaching this
conclusion, the panel decided that dreadlocks are merely a “cultural practice[],” id.
at 1030, and are not “beyond the [plaintiff’s] power to alter.” Id. at 1029 (quoting
Garcia v. Gloor, 618 F.2d 264, 269 (5th Cir. 1980)). So, since Ms. Jones could
“alter” her dreadlocks, she failed to get past Willingham’s “immutable
characteristic limitation.” Id.
A.
Willingham’s immutable-trait requirement is no longer good law, and Ms.
Jones’s panel was wrong to invoke it. The Supreme Court’s 1989 decision in Price
Waterhouse made clear that Title VII’s prohibition against discrimination on the
basis of a statutorily protected class is not limited to protecting only those
characteristics of the class that may be deemed “immutable.” Because Price
Waterhouse undermined Willingham’s immutable-trait requirement “to the point
of abrogation,” the panel should not have relied on it to dismiss Ms. Jones’s claim.
See Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998).
Price Waterhouse addressed sex discrimination. Ann Hopkins alleged that
her employer, the accounting firm Price Waterhouse, refused to allow her to
become a partner in the firm because her gender presentation defied the firm’s
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view of how a woman should look and act. One partner described her as “macho.”
Price Waterhouse, 490 U.S. at 235, 109 S. Ct. at 1782 (plurality opinion). Another
advised her to take “a course at charm school.” Id. But the “coup de grace,” to use
the Supreme Court’s term, came from a partner who told Ms. Hopkins she needed
to “walk more femininely, talk more femininely, dress more femininely, wear
make-up, have her hair styled, and wear jewelry.” Id. (emphasis omitted).
The Supreme Court held that these comments showed Price Waterhouse
discriminated against Ms. Hopkins on the basis of her sex in violation of Title VII.2
Id. at 250–51, 109 S. Ct. at 1790–91; id. at 258–61, 109 S. Ct. 1795–96 (White, J.,
concurring); id. at 272–73, 109 S. Ct. 1802–03 (O’Connor, J., concurring). None
of the traits the employer identified as its reasons for not promoting Ms. Hopkins
were immutable. Nonetheless, the Supreme Court held that discrimination on the
basis of these traits, which Ms. Hopkins could but did not change, constituted sex
discrimination. The Court explained that discrimination on the basis of these
mutable characteristics—how a woman talks, dresses, or styles her hair—showed
discrimination on the basis of sex. In asking Ms. Hopkins to make these aspects of
2
Although there was no majority opinion in Price Waterhouse, I refer to this as the holding of
the Court because it was the opinion of the four-justice plurality decision, and neither Justice
White nor Justice O’Connor, each of whom concurred in the judgment, had any quarrel with it.
See Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993 (1977) (“When a fragmented
Court decides a case and no single rationale explaining the result enjoys the assent of five
Justices, the holding of the Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.” (quotation omitted and alteration
adopted)).
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her “deportment” more feminine, Price Waterhouse required her to conform to “the
stereotype associated with” her sex. Id. at 251, 256, 109 S. Ct. at 1791, 1794. The
Supreme Court declared:
[W]e are beyond the day when an employer could evaluate employees
by assuming or insisting that they matched the stereotype associated
with their group, for in forbidding employers to discriminate against
individuals because of their sex, Congress intended to strike at the
entire spectrum of disparate treatment of men and women resulting
from sex stereotypes.
Id. at 251, 109 S. Ct. at 1791 (quotation omitted and alteration adopted). Since this
declaration from the Supreme Court, our Court has repeatedly recognized that
“discrimination on the basis of gender stereotype is sex-based discrimination.”
Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011); see Evans v. Ga. Reg’l
Hosp., 850 F.3d 1248, 1254 (11th Cir. 2017) (same); see also Equal Emp’t
Opportunity Comm’n v. Boh Bros. Const. Co., 731 F.3d 444, 454 & n.4 (5th Cir.
2013) (collecting cases of the other circuits stating the same conclusion).
The lesson of Price Waterhouse is clear. An employment decision based on
a stereotype associated with the employee’s protected class may be disparate
treatment under Title VII even when the stereotyped trait is not an “immutable”
biological characteristic of the employee. As this Court has recognized, “Title VII
bar[s] not just discrimination because of biological sex, but also gender
stereotyping—failing to act and appear according to expectations defined by
gender.” Glenn, 663 F.3d at 1316 (emphasis added); see also Evans, 850 F.3d at
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1260 (William Pryor, J., concurring) (stating that Price Waterhouse “concerned
claims that an employee’s behavior . . . deviated from a gender stereotype held by
an employer” and that “[t]he doctrine of gender nonconformity is, and always has
been, behavior based”).
Thus, after Price Waterhouse, Title VII’s protections clearly extend beyond
Willingham’s requirement that a plaintiff show discrimination based on an
immutable trait. In Willingham, the plaintiff, who was denied employment solely
because he did not have the short haircut required of male employees, argued that
“since short hair is stereotypically male, requiring it of all male applicants violates
[Title VII].” 507 F.2d at 1089. Mr. Willingham raised the gender-stereotyping
argument, so the court necessarily and expressly considered whether “sexual
stereotypes violate [Title VII].” Id. at 1090. Our court concluded they do not. See
id. at 1092–93. In rejecting the gender-stereotyping theory of liability, the
Willingham court held that the “objective” of “eliminating sexual stereotypes . . . .
may not be read into the Civil Rights Act of 1964 without further Congressional
action.” Id. at 1092. “Congress,” the court reasoned, “did not intend for its
proscription of sexual discrimination to have [such] significant and sweeping
implications.” Id. at 1090. But of course this is precisely what the Supreme Court
in Price Waterhouse told us Congress intended. See Price Waterhouse, 490 U.S. at
251, 109 S. Ct. at 1791 (“Congress intended to strike at the entire spectrum of
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disparate treatment of men and women resulting from sex stereotypes.”).
Commentators have long noted that this Court’s decision in Willingham
“predate[s] the Supreme Court’s more expansive prohibitions of sexual
stereotyping [in Price Waterhouse] and thus relied on reasoning that is no longer
good law.” Mary Anne C. Case, Disaggregating Gender from Sex and Sexual
Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 Yale
L.J. 1, 61 (1995); see also Robert Post, Prejudicial Appearances: The Logic of
American Antidiscrimination Law, 88 Cal. L. Rev. 1, 35–36 & n.166 (2000)
(explaining that in the face of Price Waterhouse, Willingham and other cases
upholding sex-differentiated grooming codes present a “spectacle of preposterous
doctrinal formulations”).
When a “direct[] conflict” like this arises between our prior precedent and a
later decision of the Supreme Court, it is our obligation to leave our precedent
behind and respect the Supreme Court’s pronouncement. See United States v.
White, 837 F.3d 1225, 1230–31 (11th Cir. 2016) (per curiam) (quotation omitted);
see also Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997) (“To the extent
of any inconsistency between our [earlier] pronouncements and the Supreme
Court’s supervening ones, of course, we are required to heed those of the Supreme
Court.”). By applying Willingham to dismiss Ms. Jones’s case, our Court has
shirked its obligation.
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B.
Beyond that, when the panel relied on Willingham’s invalid immutable-trait
requirement, it did not reach the wrong result for only Ms. Jones. Sadly, it takes
our entire Title VII disparate-treatment jurisprudence down a misguided path.
Since Price Waterhouse, this Court had applied Willingham only one time. That
was to uphold a sex-differentiated hair-length policy that was indistinguishable
from the one at issue in Willingham. See Harper v. Blockbuster Entm’t Corp., 139
F.3d 1385, 1387 (11th Cir. 1998). 3 Other than Harper, this Court has completely
avoided Willingham’s immutable-trait requirement. The rarity with which we
have invoked the Willingham requirement after Price Waterhouse suggests that—
until now—our Court understood its requirement was no longer sound. 4
The panel decision thus resurrects what had been, for good reason, a dead
letter in this circuit. And it does so in very broad terms. Instead of limiting the
3
In Harper, this Court disposed of the plaintiffs’ claim in one sentence, saying it was “squarely
foreclose[d]” by Willingham. Harper, 139 F.3d at 1387. There was no mention of Price
Waterhouse.
4
The decision in Glenn also makes clear this Court had rejected the immutable-trait
requirement. In Glenn we held that “discrimination against a transgender individual because of
her gender-nonconformity is sex discrimination.” Glenn, 663 F.3d at 1317. This result, we
explained, was compelled by Price Waterhouse. Id. at 1316–17. Glenn’s holding is a stark
repudiation of the immutable-trait requirement. When an employer takes an adverse action
against a transgender employee because of the employee’s gender nonconformity, the
employer is not discriminating based on an immutable characteristic of sex. To the contrary,
the employer has discriminated against the employee because the employee’s appearance
flouts the perceived immutability of sexual characteristics. See id. at 1316 (“A person is defined
as transgender precisely because of the perception that his or her behavior transgresses gender
stereotypes.”). We have therefore recognized that the very act of changing one’s appearance
can be the basis of an employment discrimination claim.
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immutable-trait requirement to cases involving grooming policies, the opinion
appears to hold that the “immutable characteristic limitation” applies to all Title
VII disparate treatment claims. Catastrophe Mgmt., 852 F.3d at 1029; see, e.g., id.
at 1021 (“[O]ur precedent holds that Title VII prohibits discrimination based on
immutable traits . . . .”); id. at 1028 (“Title VII protects against discrimination
based on immutable characteristics.”); id. at 1030 (“Title VII protects persons in
covered categories with respect to their immutable characteristics, but not their
cultural practices.”). To the extent the panel opinion revives the immutable-trait
requirement for sex discrimination claims, it directly contradicts our post-Price
Waterhouse precedent recognizing sex discrimination claims based on gender
nonconformity. See Evans, 850 F.3d at 1254 (“Discrimination based on failure to
conform to a gender stereotype is sex-based discrimination.”); Glenn, 663 F.3d at
1316 (same). After all, the crux of every gender-nonconformity claim is that the
way an employee chooses to present her gender, through any number of mutable
characteristics, is protected by Title VII.
My reading of the panel opinion tells me that the panel not only resurrects
this damaging immutable-trait requirement, it expands that requirement. It does so
by applying the doctrine to disparate treatment claims alleging race discrimination.
Before Ms. Jones’s panel opinion, this Court had never applied Willingham’s
immutable-trait requirement to a race-based disparate treatment claim. Now, the
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panel has extended the doctrine to race claims, which pushes the invalid doctrine
into a whole new category of Title VII claims. Willingham mentioned race only
once. It said that “race” itself is an “immutable characteristic[]” and therefore
protected under Title VII. 507 F.2d at 1091 (“Equal employment opportunity may
be secured only when employers are barred from discriminating against employees
on the basis of immutable characteristics, such as race and national origin.”). In
other words, Willingham used the concept of immutability to identify race as a
characteristic that is a prohibited basis for employer decision-making. Willingham
never said anything about using immutability against a racial group to exclude
certain features of racial identity from statutory protection. 5 See Camille Gear
Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the
Future of Title VII, 79 N.Y.U. L. Rev. 1134, 1216, 1220 (2004) (recognizing this
flaw in the extension of the “immutability construct” to claims of race
discrimination).
It isn’t hard to see why an immutable-trait requirement has no place in the
race-discrimination context. The doctrine presumes that there are immutable, or
naturally-occurring physical differences between racial groups. This, even though
5
In Garcia, the former Fifth Circuit applied the immutable-trait requirement to a claim of
national-origin discrimination, upholding an employer’s English-only policy. See 618 F.2d at
270. But the court said nothing about applying the requirement in the context of race
discrimination. Rather, as far as race is concerned, Garcia made only the same point as
Willingham—that the racial classifications themselves are immutable and therefore protected.
See Garcia, 618 F.2d at 269 (“No one can change his place of birth (national origin), the place of
birth of his forebears (national origin), his race or fundamental sexual characteristics.”).
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both the academy and the courts have long rejected the notion that racial divisions
are based on biological differences. See Ian F. Haney Lopez, The Social
Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29
Harv. C.R.-C.L. L. Rev. 1, 11–20 (1994) (collecting sources and explaining that
“[t]he rejection of race in science is now almost complete”). Summarizing the
findings of “[m]any modern biologists and anthropologists,” the Supreme Court
told us three decades ago:
Clear-cut [racial] categories do not exist. The particular traits which
have generally been chosen to characterize races have been criticized
as having little biological significance. It has been found that
differences between individuals of the same race are often greater than
the differences between the “average” individuals of different races.
Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 610 n.4, 107 S. Ct. 2022,
2026 n.4 (1987).
The supposed distinction between an “immutable” racial trait and a
“mutable” one is illusory. Is the color of an employee’s hair an immutable trait?
What about the shape of an employee’s nose? It seems to me that employers could
use the panel’s rule to argue that any case in which the employer hasn’t overtly
discriminated on the basis of skin color itself falls outside of Title VII’s
protections. And even that may be questionable, because with modern medicine
skin color can be changed too. See Margaret L. Hunter, Buying Racial Capital:
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Skin-bleaching and Cosmetic Surgery in a Globalized World, 4 J. Pan Afr. Studies
4, 142–64 (2011).
The panel opinion itself shows us that the notion of an “immutable” racial
characteristic is fiction. In an effort to give lower courts an example of “the
distinction between immutable and mutable characteristics of race,” the panel
draws a bright line between dreadlocks and an Afro. Catastrophe Mgmt., 852 F.3d
at 1030. The panel actually says that while dreadlocks, a “black hairstyle,” is a
“mutable choice” and therefore not protected, an Afro, “black hair texture,” is an
“immutable characteristic” and is therefore protected. Id. This distinction is
nonsense. If an immutable trait is something that is “beyond the [plaintiff]’s power
to alter,” id. at 1029 (quotation omitted), then neither dreadlocks nor Afros are
immutable traits of black people. Like any hair style, both can be altered.
In fact, the very case the panel relies on for the proposition that Afros are an
immutable characteristic, Jenkins v. Blue Cross Mutual Hospital Insurance, Inc.,
538 F.2d 164 (7th Cir. 1976) (en banc), disproves the point. See Catastrophe
Mgmt., 852 F.3d at 1030 (citing Jenkins, 538 F.2d at 168). In Jenkins, the Seventh
Circuit held that a black employee’s allegation that she was denied a promotion
because she wore her hair in an Afro stated a Title VII claim for race
discrimination. 538 F.2d at 168. But contrary to Ms. Jones’s panel’s assertion that
an Afro constitutes “an immutable characteristic,” Catastrophe Mgmt., 852 F.3d at
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1030, the Jenkins decision actually highlights the mutability of an Afro. In
Jenkins, the plaintiff made the choice to style her hair in an Afro after years of
wearing her hair differently. 538 F.2d at 167. The plaintiff affirmatively alleged
that she worked for her employer for three years with “no problem until May 1970
when I got my natural hair style.” Id. at 167; see also id. at 168–69 (repeatedly
describing the plaintiff’s Afro as a “hairstyle”). The Seventh Circuit concluded
that an allegation of discrimination based on a black employee’s Afro stated a
claim under Title VII not because an Afro is an immutable characteristic of black
people, but instead because singling the plaintiff out on account of her “Afro
hairstyle was merely the method by which the plaintiff’s supervisor [] expressed
the employer’s racial discrimination.” Id. at 168.
The discriminatory animus that motivates an employer to ban dreadlocks
offends the antidiscrimination principle embodied in Title VII just as much as the
discriminatory animus motivating a ban on Afros. Both are distinctly African-
American racial traits. So, when an employer refuses to hire or promote a black
employee on the basis of one of those traits, there is a strong indication that the
employee’s race motivated the decision. In other words, when an aspect of a
person’s appearance marks her as a member of a protected class and her employer
then cites that racial marker as the reason for taking action against her, the
employee’s race probably had something to do with it. Whether that racialized
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aspect of her appearance is “immutable” such as skin color or “mutable” such as
hair is beside the point. Either way, the employer’s action based on a racial
identifier is an action based on the employee’s race.
In order to faithfully apply Title VII’s ban on racial discrimination, courts
must identify discriminatory intent in all its disguises. That is why we instruct
district courts to look for “circumstantial evidence . . . [of] the employer’s
discriminatory intent,” however that intent may manifest. Smith v. Lockheed-
Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011); see also Ash v. Tyson Foods,
Inc., 546 U.S. 454, 456, 126 S. Ct. 1195, 1197 (2006) (per curiam) (holding that
even a facially race-neutral remark may be “probative of bias,” “depend[ing] on
various factors including context, inflection, tone of voice, local custom, and
historical usage”). Yet the panel opinion forces courts in Alabama, Florida, and
Georgia to close their eyes to compelling evidence of discriminatory intent. This
flies in the face of the broad mandate courts have been given in disparate treatment
cases.
In concluding this debate between two appeals court judges, neither of us
African American, about what is an immutable characteristic of African American
hair, the ironies are not lost on me. Ms. Jones is not going to be impacted much by
which view ultimately prevails in what Judge Jordan refers to as the “[d]ebates
[that] rage in the academy (as well as in society) over whether race is biological,
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cultural consensus-based, or some or none of the above.” Ms. Jones’s complaint
plainly sets out facts that plausibly support her claim that CMS withdrew her job
offer based on a marker of her race. As you’ve read, Judge Jordan himself
recognizes that there is “no legal or factual agreement” about the relationship
between a person’s hair style and her race. That being the case, Ms. Jones had
every reason to come into federal court, seeking to have a jury instructed on the
law that governs this dispute, and then decide these facts about which we cannot
agree. Ms. Jones should have had that opportunity.
C.
In the ways I have set out, the panel went astray when it invoked
Willingham’s immutable-trait requirement to dismiss the EEOC’s complaint. I
will now review how the EEOC’s allegations should have been analyzed. Once we
put aside the no-longer valid immutable-trait requirement and instead analyze the
complaint under the stereotyping doctrine from Price Waterhouse, the complaint
easily sets out a plausible claim for race-based disparate treatment. It therefore
should have survived CMS’s motion to dismiss. See Am. Dental Ass’n v. Cigna
Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (“[T]o survive a motion to dismiss, a
complaint must [] contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)).
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Price Waterhouse teaches that, for purposes of Title VII, it does not matter
whether the trait the employer disfavors is mutable or immutable. What matters is
whether that trait is linked, by stereotype, to a protected category. See 490 U.S. at
251, 109 S. Ct. at 1791. Price Waterhouse didn’t refuse to promote all employees
who are women (an “immutable” trait). It refused to promote a subset of women:
those who failed to conform to a stereotype of how a woman should look in the
workplace. See id. at 235, 109 S. Ct. at 1782 (“Hopkins [was told she needed
to] . . . dress more femininely, wear make-up, have her hair styled, and wear
jewelry.”). CMS’s ban on dreadlocks works the same way. The company might
not refuse to hire all black applicants. Rather, it refuses to hire a subset of black
applicants: those who, because of their hair, fail to conform to a stereotypical
notion of how a black person should look in the workplace. 6
The EEOC clearly alleged that dreadlocks are a stereotyped trait of African
Americans. The complaint explains that the perception that dreadlocks are
“unprofessional” and “not neat” is grounded in a deep-seated white cultural
association between black hair and dirtiness. This perception has origins in slavery
itself. See Doc. 21-1 ¶ 20 (alleging that the term “dreadlock” originated during the
6
This Court’s precedent made clear, nearly a decade before Price Waterhouse, that the reach
of Title VII “is not to be diluted because discrimination adversely affects only a portion of the
protected class.” Jefferies v. Harris Cty. Cmty. Action Ass’n, 615 F.2d 1025, 1034 (5th Cir. 1980)
(quotation omitted); see id. at 1033 (“[D]isparate treatment of a subclass of women could
constitute a violation of Title VII . . . .”).
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slave trade, when “slave traders referred to the slaves’ hair as ‘dreadful’” because
slaves’ hair often “became matted with blood, feces, urine, sweat, tears, and dirt”
during the transatlantic voyage). Thus, the complaint plainly asserts, the
“assumption” that “dreadlocks inevitably will get messy” is “based on stereotyped
notions of how Black people should and should not wear their hair and is premised
on a normative standard and preference for White hair.”
The EEOC also alleged that CMS relied on this racial stereotype when it
rescinded Ms. Jones’s job offer. To begin, there is certainly daylight between
CMS’s formal, written grooming policy, which did not single out any particular
hairstyle, and its informal, unwritten ban on dreadlocks. CMS’s written grooming
policy was race neutral: all employees’ hairstyles must “reflect a
business/professional image” and must not be “excessive.” Yet CMS then decided
to interpret this race-neutral policy to ban a particular type of hairstyle. According
to the complaint, the hairstyle selected by CMS typically grows “naturally” only in
black people’s hair and not in white people’s. Ms. Jones was told that CMS could
not hire her with dreadlocks. CMS’s ban on dreadlocks therefore appears to be
categorical, presumably meaning that the company views all dreadlocks as
“excessive” and lacking a “business[like]/professional image.” As the human
resources manager, Ms. Wilson, explained to Ms. Jones, the problem with
dreadlocks is “they tend to get messy.” But again, the complaint explained that
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CMS’s “assumption that [] dreadlocks inevitably will get messy” is grounded in
“stereotyped notions” of black physical characteristics and a racial preference for
employees with characteristically white traits. Thus, taking the facts alleged in the
complaint as true, CMS’s stated reason for not hiring Ms. Jones was plainly a
racial stereotype.
Price Waterhouse tells us that an employer’s mere mention of a stereotype
related to the employee’s protected class does “not inevitably prove that [the
employee’s protected status] played a part in [the] particular employment
decision.” 490 U.S. at 251, 109 S. Ct. at 1791. Instead, the plaintiff has the burden
to “show that the employer actually relied on her [protected class] in making its
decision,” and “stereotyped remarks can certainly be evidence” of that. Id.
Again, this case was decided on the pleadings. The EEOC therefore had no
obligation to prove that CMS reneged on Ms. Jones’s job offer because of her race.
It only had to allege facts to show this is plausible. Twombly, 550 U.S. at 570, 127
S. Ct. at 1974. I view the allegations I’ve discussed as sufficient to support a
plausible claim that CMS relied on Ms. Jones’s race in deciding to revoke her offer
of employment. The stereotyping here, like that in Price Waterhouse, “did not
simply consist of stray remarks” by a non-decisionmaker. See 490 U.S. at 251,
109 S. Ct. at 1791. The racial stereotype was the express reason, indeed the only
reason, CMS gave for not hiring Ms. Jones. And it came straight from the
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manager who decided not to hire her. See Quigg v. Thomas Cty. Sch. Dist., 814
F.3d 1227, 1242 (11th Cir. 2016) (holding that remarks based on sex stereotypes
constituted circumstantial evidence of sex discrimination sufficient to overcome
summary judgment where the remarks were made “during conversations about”
the employment decision; “in relative temporal proximity to” the decision; and
“specifically refer[ed] to” the company’s preferences).
But the EEOC’s complaint alleged another fact that shows, above and
beyond plausibility, that CMS “actually relied on” Ms. Jones’s race in deciding to
rescind her offer. See Price Waterhouse, 490 U.S. at 251, 109 S. Ct. at 1791.
Immediately after Ms. Wilson gave Ms. Jones the purported nondiscriminatory
reason for CMS’s dreadlocks ban—“they tend to get messy”—she acknowledged
that reason did not apply to Ms. Jones’s hair: “I’m not saying yours are [messy].”
CMS thus recognized the distinction between dreadlocks that are truly “messy”
and dreadlocks that aren’t, and demonstrated it can tell the difference between the
two. Even so, after it acknowledged that Ms. Jones’s hair wasn’t messy, CMS
enforced the dreadlocks ban against her anyway. This did nothing to further the
nondiscriminatory reason CMS gave for the company’s dreadlocks ban. Because
CMS openly acknowledged that its only nondiscriminatory reason for the
dreadlocks ban did not apply to Ms. Jones, we are left with only her race as the
basis for its decision not to hire her. There is no other explanation for the
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company’s refusal to hire a black applicant whose dreadlocks it recognizes do not
implicate its one nondiscriminatory reason for banning dreadlocks.
D.
I have examined why the panel was wrong to apply the immutable-trait
requirement and why, under Price Waterhouse, the EEOC’s complaint states a
claim for race discrimination. But even if we were to ignore Price Waterhouse and
apply Willingham’s immutable-trait requirement, the panel still reached the wrong
result. The complaint clearly alleges that dreadlocks are an immutable trait that
satisfies the Willingham requirement.
The panel says it defines an “immutable” trait as one that is “beyond the
[plaintiff]’s power to alter,” Catastrophe Mgmt., 852 F.3d at 1029 (quoting Garcia,
618 F.2d at 269), so characterizing dreadlocks as mutable might sound right. No
one disputes that dreadlocks can be altered. Indeed, the complaint specifically
described the “expensive and harsh treatments” that many African Americans use
to “straighten their hair” “[i]n response to a pervasive animus toward the natural
texture of Black people’s hair.” It also alleged that African Americans “wear wigs,
hair pieces, or extensions to create an appearance that is consistent with Caucasian
hair and style standards.”
So the question of whether dreadlocks are “immutable” for purposes of
Willingham depends entirely on how we define that term. “[B]eyond the
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[plaintiff]’s power to alter” is certainly the definition that supports the panel’s
holding that dreadlocks are not immutable. Id. However, in order to justify its
distinction between Afros and dreadlocks, the panel uses another definition of the
term. Certainly, “beyond the [plaintiff]’s power to alter” is not the definition of
“immutable” that would support holding an Afro to be immutable. The same
“expensive and harsh treatments” that a black person can use to turn dreadlocks
into Caucasian-looking hair can be used to the same effect on an Afro. Thus, the
panel turns to a different set of definitions of “immutable.” Those are:
“characteristics [that] are a matter of birth, and not culture,” id. at 1027; “inherited
physical characteristics,” id.; “[characteristics] that an employee is born with,” id.
at 1029 n.4; and, a characteristic that is not “‘the product of . . . artifice,’” id. at
1030 (quoting Rogers v. Am. Airlines, Inc., 527 F. Supp. 229, 232 (S.D.N.Y.
1981)). Taken together, the panel defines “immutable” as a trait that is naturally
occurring.
Using this definition of “immutable,” the complaint certainly alleged the
immutability of dreadlocks. The complaint said “[d]readlocks are formed in a
Black person’s hair naturally, without any manipulation.” (Emphasis added.) It
also referred to dreadlocks as the “natural texture” of black hair and “African
Americans[’] . . . natural hair.” And it explained that “[g]enerally, the hair of
Black people naturally grows in very tight coarse coils. In contrast, the hair of
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White people typically grows straight or in softly curled patterns.” Finally, the
complaint described dreadlocks as “physiologically and culturally associated with
people of African descent.” (Emphasis added.) If this isn’t enough to allege that
dreadlocks occur naturally in black people’s hair, I don’t know what is.7
The panel evidently believed that an Afro is black hair in its natural,
unmediated state, while dreadlocks are not. But at the motion to dismiss stage, we
must accept all of the factual allegations in the complaint as true. Erickson v.
Pardus, 551 U.S. 89, 93–94, 127 S. Ct. 2197, 2200 (2007) (per curiam). The panel
did not do that. In concluding that the EEOC’s complaint “did not allege that
dreadlocks are an immutable characteristic of black persons,” Catastrophe Mgmt.,
852 F.3d at 1022, the panel ignored the plaintiff’s well-pled allegations that
dreadlocks occur “naturally” in a black person’s hair. Instead, the panel
substituted its own notion that the only natural black hair is an Afro.
* * *
The appearance of a person’s hair is always capable of change—hair can be
cut, straightened, curled, or covered. The question is whether Title VII protects a
black employee’s choice to wear her hair in its natural state. The panel concedes it
7
The complaint also alleged, in the alternative, that “even if [dreadlocks] [are] not an
immutable characteristic,” they are, “[s]imilar to the Afro, . . . a manner of wearing hair that is
suitable to the texture of Black hair and that has been worn by Black individuals as a cultural
symbol.”
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does. See id. at 1030. That leaves only the question of whether the EEOC’s
complaint sufficiently alleged that dreadlocks are natural hair. It does.
III. CONCLUSION
“[T]he very purpose of [T]itle VII is to promote hiring on the basis of job
qualifications, rather than on the basis of race or color.” Griggs v. Duke Power
Co., 401 U.S. 424, 434, 91 S. Ct. 849, 855 (1971) (quotation omitted). Although
instances of open and obvious racial discrimination in the workplace still exist,
intentional discrimination may now take on more subtle forms. In many cases an
employer’s racial preference will be camouflaged by policies that appear facially
neutral. That is what the EEOC alleged happened to Ms. Jones. A ban on “all”
applicants with dreadlocks is about as race-neutral as a ban on “all” applicants with
dark-colored skin.
The panel’s conclusion that, as a matter of law, a blanket ban on dreadlocks
does not violate Title VII’s prohibition on disparate treatment is simply wrong.
And so is the immutable-trait requirement the panel used to get there. If Title VII
prohibits an employer from rescinding a job offer because it perceives a female
applicant’s appearance to be insufficiently feminine (or overly masculine), see
Price Waterhouse, 490 U.S. at 256, 109 S. Ct. at 1794, it must also prohibit an
employer from rescinding an offer because it perceives a black applicant’s
appearance to be insufficiently white (or overly black). My colleague Judge
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William Pryor recently pointed out that a female employee “can state a claim that
she experienced . . . [sex] discrimination for wearing a ‘male haircut.’” Evans, 850
F.3d at 1258 (William Pryor, J., concurring). By the same logic, a black employee
like Ms. Jones should be able to state a claim of race discrimination for wearing
her hair in dreadlocks—a “black haircut.”
Surely, the viability of Title VII cannot rest on judges drawing distinctions
between Afros and dreadlocks. Yet that is what the panel opinion seems to call
for. The opinion requires courts and litigants to engage in a pseudo-scientific
analysis of which racial traits occur naturally and which do not. This is not how
we should be deciding cases of race discrimination.
There was a time in our nation’s history when a person’s legal status was
dictated by whether she was white or black. Courts frequently adjudicated the
physical features that “[n]ature has stampt upon the African and his descendants.” 8
Hudgins v. Wright, 11 Va. 134, 139 (Va. 1806) (stating that a “woolly head of
hair” is the “strong[est] [] ingredient in the African constitution” (emphasis
omitted)). Today we count those decisions among the most shameful in the history
of our courts. And, of course, Congress’s purpose in passing Title VII was to
eliminate one of the many stubborn vestiges of that era. Our task, in applying that
statute today, is to be true to that most important goal. The panel opinion is not.
8
See generally Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the
Nineteenth-Century South, 108 Yale L.J. 109 (1998).
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Case: 14-13482 Date Filed: 12/05/2017 Page: 41 of 41
Rather, in holding that certain physical features are immutable traits of the
different racial groups, this Court legitimizes the very categories that Title VII was
intended to dismantle.
I respectfully dissent.
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