Monday, October 16, 2017

Where Anti-Discrimination Law Fails, Diversity Succeeds (Prof Stacy Hawkins)

By Professor Stacy Hawkins

Perhaps you have read about the recent incident involving a Banana Republic employee in West Chester, NY that is making the rounds on social media and digital news outlets?  The story concerns a young black woman who works as a sales associate in the Banana Republic store in the West Chester Mall and who was told by her manager that she could not continue to work in the store if she did not remove the “box braids” from her hair. In the words of the manager the hairstyle, which is generally worn by and associated with black women, was “unkempt” and too “urban” for the store’s image.  The woman tried explaining to her manager that she wore the braids in an effort to protect her hair from the harsh cold of the winter weather, but her manager was unmoved. The manager responded by suggesting that she try putting shea butter on her hair instead.

Rather than accept the manager’s ultimatum to remove her box braids or risk her job, the woman did what so many do in our digital age to express public and private outrage; she took the issue to social media.  She posted about the incident on Facebook.  In her post she described the encounter as both “humiliat[ing] and degrad[ing].” In the warp speed of electronic media, her story was picked up by others and eventually published in online news outlets.  Her story was also posted to the Banana Republic Facebook page, where it received a prompt reply from a corporate representative asking the woman to reach out to the company’s employee relations department so the matter could be pursued further.  And indeed it was pursued further.  Within days news reports indicated that it was the manager who instructed the woman to remove her box braids, not the woman herself, who was fired by Banana Republic. Despite the fact that this complaint was made by a black woman about mistreatment for her uniquely black hairstyle, what can be credited for this prompt and curative response by Banana Republic is not its obligation to enforce anti-discrimination law forbidding race discrimination in employment, but instead its commitment to workplace diversity and inclusion.

As Professor D. Wendy Greene has written in numerous articles, Title VII (the federal statute prohibiting workplace discrimination) does not generally recognize cultural affects, such as hairstyles, as giving rise to actionable claims of racial discrimination.  Instead, finding that hairstyle is a mutable characteristic, not an intrinsic aspect of racial identity, courts have routinely declined to recognize disparate treatment claims by black women alleging that an employer engaged in racial discrimination by adopting grooming standards disfavoring certain black hairstyles, such as braids, cornrows or locs.  In other words, under Title VII, Banana Republic likely would have no legal liability for demanding that this black woman remove her box braids.  So why did Banana Republic fire the manager who demanded that this employee remove her box braids?  The answer, it seems, lies not in the company’s concern for Title VII enforcement, but in their corporate commitment to diversity and inclusion. Banana Republic is owned and operated by Gap, Inc.  The following is an excerpt from the Gap, Inc. corporate website about its commitment to diversity and inclusion:

 

At Gap Inc. inclusion and equality is woven into our DNA. As a global company, we know that appreciating and understanding the diversity of our customers, employees and partners around the world helps us succeed. . . . We maintain our commitment to diversity with workplace policies that ensure we do what's right, and treat our customers—and each other—with integrity and respect. . . regardless of appearance, skin color, gender, or any other such distinction. 

 

Notably, “appearance” is not a trait that is protected under Title VII.  Nor does Title VII require that employers value the “diversity” of their employees or otherwise treat them with “integrity and respect.”  Gap, Inc. adopted this policy as part of its commitment to diversity and inclusion because of its belief, as widely shared in corporate America, that such a policy is good for business. It not only helps Gap, Inc. and other corporations to better serve their diverse clients and customers, but it also ensures that they attract and retain the best talent, who themselves will inevitably be diverse.  Frequently diversity critics question the sincerity and efficacy of workplace diversity and inclusion efforts.  Many wonder if they do any good on behalf of the diverse employees they are ostensibly designed to help, and worse still if they can even incur harms to these employees rather than engender benefits by focusing on business benefits rather than anti-discrimination compliance.  This incident is indicative of the ways that workplace diversity and inclusion efforts do aid in creating more equitable and inclusive workplaces. Diversity did what anti-discrimination law could not do. As this Banana Republic employee can now attest, diversity and inclusion efforts may be good for business, but they are also, very often, good for employees too.

by Professor Stacy Hawkins, Rutgers Law School

 

 

 

https://lawprofessors.typepad.com/racelawprof/2017/10/where-anti-discrimination-law-fails-diversity-succeeds.html

| Permalink

Comments

Post a comment