monday, 19 september of 2016

Employees don´t have a right to wear dreadlocks

Banning employees from wearing their hair in dreadlocks isn’t racial discrimination, a federal appeals court ruled.

The 3-0 decision Thursday by the 11th U.S. Circuit Court of Appeals dismissed a lawsuit brought by the Equal Employment Opportunity Commission against a company that refused to hire a black woman because she wouldn’t cut her dreadlocks.

Delving into weighty questions about the concept of race, the case began in 2013 when the EEOC accused an insurance claims processing company in Mobile, Ala., of discriminating against an applicant named Chastity Jones.

Ms. Jones applied to work for Catastrophe Management Solutions as a customer service representative in 2010. Initially, she was hired. But the job came with a request: The company’s human resources manager told her she needed to cut her dreadlocks to comply with its grooming policy.

The company requires employees to be dressed and groomed “in a manner that projects a professional and businesslike image.” And dreadlocks, the HR manager told Ms. Jones, “tend to get messy.” When Ms. Jones refused to change her hair, the company withdrew the offer.

The EEOC alleged that the “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.” The argument, the EEOC said, is based on an understanding of race as “a social construct” that “has no biological definition.”

At oral arguments, according to the 11th Circuit opinion, the EEOC “asserted that if a white person chose to wear dreadlocks as a sign of racial support for her black colleagues, and the employer applied its dreadlocks ban to that person, she too could assert a race-based disparate treatment claim.”

Gibson Dunn & Crutcher litigators representing the company said its grooming policy was race-neutral. And they accused the EEOC of indulging in “novel theories” about race and culture that sounded like a sociological thesis on critical theory, not a valid legal argument.

Federal law bans employment discrimination on the basis of race. And courts have interpreted that to mean discrimination based on skin color and other “immutable traits.”

The concept of immutability proved decisive. Atlanta-based 11th Circuit Judge Adalberto Jordan, a President Obama appointee who wrote the appellate opinion, said he recognized that definitions and understandings of race can change over time.

“We would be remiss,” he wrote, “if we did not acknowledge that, in the last several decades, there have been some calls for courts to interpret Title VII more expansively by eliminating the biological conception of ‘race’ and encompassing cultural characteristics associated with race.”

But Judge Jordan was reluctant for the court to lead such an inquiry. Legally, he said the court wasn’t prepared to go down a path that no court had ever taken.

“As far as we can tell, every court to have considered the issue has rejected the argument that Title VII protects hairstyles culturally associated with race,” he stated.

While the definition of discrimination isn’t fixed, it’s a debate to be conducted “through the democratic process,” not by courts, he wrote, affirming a lower-court ruling.

An EEOC spokeswoman told Law Blog on Friday: “We believe the court was incorrect when it held that the employer’s actions could not be proven to be race discrimination. We are reviewing our options.”

Gibson Dunn attorney Helgi Walker, who argued the case, said the ruling “reaffirms” that employers “may establish and enforce race-neutral grooming policies for their workplace without running afoul of Title VII.”

(Published by The Wall Street Journal - September 16, 2016)

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