Tuesday, February 6, 2018
D. Wendy Greene, Splitting Hairs: The 11th Circuit's Take on Workplace Bans Against Black Women's Natural Hair in EEOC v. Catastrophe, 71 Miami L. Rev. (2017)
What does hair have to do with African descendant women’s employment opportunities in the 21st century? In this Article, Professor Greene demonstrates that Black women's natural hair has much to do with their ability to obtain and maintain employment as well as their enjoyment of dignity, equality, and agency in contemporary workplaces. When Black women wear natural hairstyles like afros, locks, twists, braids, they are often subjected to harassment, demotions, discipline, termination and denial of employment for which they are qualified. However, when Black women have challenged natural hairstyle bans as race discrimination violative of federal laws like Title VII of the 1964 Civil Rights Act, federal courts have issued hair splitting decisions that decree: federal anti-discrimination law protects African descendants when they are discriminated against for adorning afros but statutory protection ceases once they grow their naturally textured or curly hair long or don it in braids, twists, or locks. Thus, generally, Black women subjected to discrimination because of their natural hair lack any form of legal redress. The 11th Circuit Court of Appeals recent decision in EEOC v. Catastrophe Management Solutions (2016) preserved this status quo by holding that an employer’s revocation of a job offer to an African American woman for refusing to cut off her dreadlocks did not violate Title VII because locks are not an “immutable” racial characteristic of African descendants presumably like an afro.
Professor Greene explains that federal courts’ strict application of this “legal fiction” known as the immutability doctrine—and the biological notion of race that informs it—have greatly contributed to this incoherency in anti-discrimination law that triggers troubling, tangible consequences in the lives of Black women. Indeed, natural hairstyle bans effectively require Black women to wear straightened hairstyles, which Black women often achieve through costly, time-consuming, and physically damaging procedures like weaves, wigs, hair extensions, chemical relaxers and/or the application of extreme heat to their hair. Thus, workplace bans against natural hair are not a superficial matter; they can negatively impact Black women's physical, economic, and emotional well being. Moreover, Professor Greene argues that the 11th Circuit's recent dismissal of the EEOC’s case, which affirms the legality of straight hair mandates imposed upon Black women, exacerbates the “hyper-regulation of Black women’s bodies via their hair” in the 21st century workplace.