Equal Employment Opportunity Commission v. Catastrophe Management Solutions , 852 F.3d 1018 ( 2016 )

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[PUBLISH]
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
________________________
(December 13, 2016)
Before JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO, * District
Judge.
JORDAN, Circuit Judge:
*
The Honorable Eduardo Robreño, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
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We withdraw our previous opinion, dated September 15, 2016, and
published at 837 F.3d 1156, and issue this revised opinion:
The Equal Employment Opportunity Commission filed suit on behalf of
Chastity Jones, a black job applicant whose offer of employment was rescinded by
Catastrophe Management Solutions pursuant to its race-neutral grooming policy
when she refused to cut off her dreadlocks. The EEOC alleged that CMS’ conduct
constituted discrimination on the basis of Ms. Jones’ race in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2(a)(1) & 2000e–2(m). The
district court dismissed the complaint under Federal Rule of Civil Procedure
12(b)(6) because it did not plausibly allege intentional racial discrimination by
CMS against Ms. Jones. See E.E.O.C. v. Catastrophe Mgmt. Solutions, 11 F.
Supp. 3d 1139, 1142–44 (S.D. Ala. 2014). The district court also denied the
EEOC’s motion for leave to amend, concluding that the proposed amended
complaint would be futile. The EEOC appealed.
With the benefit of oral argument, we affirm. First, the EEOC—in its
proposed amended complaint and in its briefs—conflates the distinct Title VII
theories of disparate treatment (the sole theory on which it is proceeding) and
disparate impact (the theory it has expressly disclaimed). Second, our precedent
holds that Title VII prohibits discrimination based on immutable traits, and the
proposed amended complaint does not assert that dreadlocks—though culturally
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associated with race—are an immutable characteristic of black persons. Third, we
are not persuaded by the guidance in the EEOC’s Compliance Manual because it
conflicts with the position taken by the EEOC in an earlier administrative appeal,
and because the EEOC has not persuasively explained why it changed course.
Fourth, no court has accepted the EEOC’s view of Title VII in a scenario like this
one, and the allegations in the proposed amended complaint do not set out a
plausible claim that CMS intentionally discriminated against Ms. Jones on the
basis of her race.
I
The EEOC relies on the allegations in its proposed amended complaint, see
Br. of EEOC at 2–6, so we set out those allegations below.
A
CMS, a claims processing company located in Mobile, Alabama, provides
customer service support to insurance companies. In 2010, CMS announced that it
was seeking candidates with basic computer knowledge and professional phone
skills to work as customer service representatives. CMS’ customer representatives
do not have contact with the public, as they handle telephone calls in a large call
room.
Ms. Jones, who is black, completed an online employment application for
the customer service position in May of 2010, and was selected for an in-person
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interview. She arrived at CMS for her interview several days later dressed in a
blue business suit and wearing her hair in short dreadlocks.
After waiting with a number of other applicants, Ms. Jones interviewed with
a company representative to discuss the requirements of the position. A short time
later, Ms. Jones and other selected applicants were brought into a room as a group.
CMS’ human resources manager, Jeannie Wilson—who is white—informed
the applicants in the room, including Ms. Jones, that they had been hired. Ms.
Wilson also told the successful applicants that they would have to complete
scheduled lab tests and other paperwork before beginning their employment, and
she offered to meet privately with anyone who had a conflict with CMS’ schedule.
As of this time no one had commented on Ms. Jones’ hair.
Following the meeting, Ms. Jones met with Ms. Wilson privately to discuss
a scheduling conflict she had and to request to change her lab test date. Ms.
Wilson told Ms. Jones that she could return at a different time for the lab test.
Before Ms. Jones got up to leave, Ms. Wilson asked her whether she had her
hair in dreadlocks. Ms. Jones said yes, and Ms. Wilson replied that CMS could not
hire her “with the dreadlocks.” When Ms. Jones asked what the problem was, Ms.
Wilson said “they tend to get messy, although I’m not saying yours are, but you
know what I’m talking about.” Ms. Wilson told Ms. Jones about a male applicant
who was asked to cut off his dreadlocks in order to obtain a job with CMS.
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When Ms. Jones said that she would not cut her hair, Ms. Wilson told her
that CMS could not hire her, and asked her to return the paperwork she had been
given. Ms. Jones did as requested and left.
At the time, CMS had a race-neutral grooming policy which read as follows:
“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[.]”
B
Dreadlocks, according to the proposed amended complaint, are “a manner of
wearing hair that is common for black people and suitable for black hair texture.
Dreadlocks are formed in a black person’s hair naturally, without any
manipulation, or by manual manipulation of hair into larger coils.”
The EEOC alleged that the term dreadlock originated during the slave trade
in the early history of the United States. “During the forced transportation of
Africans across the ocean, their hair became matted with blood, feces, urine, sweat,
tears, and dirt. Upon observing them, some slave traders referred to the slaves’
hair as ‘dreadful,’” and dreadlock became a “commonly used word to refer to the
locks that had formed during the slaves’ long trips across the ocean.”
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C
The proposed amended complaint also contained some legal conclusions
about the concept of race. First, the EEOC stated that race “is a social construct
and has no biological definition.” Second, the EEOC asserted that “the concept of
race is not limited to or defined by immutable physical characteristics.” Third,
according to the EEOC Compliance Manual, the “concept of race encompasses
cultural characteristics related to race or ethnicity,” including “grooming
practices.” Fourth, although some non-black persons “have a hair texture that
would allow the hair to lock, dreadlocks are nonetheless a racial characteristic, just
as skin color is a racial characteristic.”
Playing off these legal conclusions, the proposed amended complaint set out
allegations about black persons and their hair. The hair of black persons grows “in
very tight coarse coils,” which is different than the hair of white persons.
“Historically, the texture of hair has been used as a substantial determiner of race,”
and “dreadlocks are a method of hair styling suitable for the texture of black hair
and [are] culturally associated” with black persons. When black persons “choose
to wear and display their hair in its natural texture in the workplace, rather than
straightening it or hiding it, they are often stereotyped as not being ‘teamplayers,’
‘radicals,’ ‘troublemakers,’ or not sufficiently assimilated into the corporate and
professional world of employment.” Significantly, the proposed amended
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complaint did not allege that dreadlocks are an immutable characteristic of black
persons.
II
Our review in this appeal is plenary. Like the district court, we accept as
true the well-pleaded factual allegations in the proposed amended complaint and
draw all reasonable inferences in the EEOC’s favor. See, e.g., Ellis v. Cartoon
Network, Inc., 803 F.3d 1251, 1255 (11th Cir. 2015) (dismissal of a complaint for
failure to state a claim); St. Charles Foods, Inc. v. America’s Favorite Chicken Co.,
198 F.3d 815, 822 (11th Cir. 1999) (denial of a motion for leave to amend due to
futility). The legal conclusions in the proposed amended complaint, however, are
not presumed to be true. See Ashcroft v. Iqbal, 556 U.S. 662, 679–81 (2009);
Franklin v. Curry, 738 F.3d 1246, 1248 n.1 (11th Cir. 2013).
A complaint must contain sufficient factual allegations to “state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In a Title VII case like this one, the EEOC had to set out enough “factual
content t[o] allow[ ] [a] court to draw the reasonable inference” that CMS is liable
for the intentional racial discrimination alleged. See Iqbal, 556 U.S. at 678–79
(explaining that the “plausibility standard” requires more than a “mere possibility”
but is “not akin to a ‘probability requirement’”).
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III1
The EEOC claimed in its proposed amended complaint 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.” So, according to the EEOC, the decision of CMS to
“interpret its race-neutral written grooming policy to ban the wearing of dreadlocks
constitutes an employment practice that discriminates on the basis of race.”
The district court dismissed the initial complaint, and concluded that the
proposed amended complaint was futile, because “Title VII prohibits
discrimination on the basis of immutable characteristics, such as race, color, or
natural origin,” and “[a] hairstyle, even one more closely associated with a
particular ethnic group, is a mutable characteristic.” Catastrophe Mgmt., 11 F.
Supp. 3d at 1143 (order granting motion to dismiss). The district court was not
swayed by the EEOC’s contention that the allegations were sufficient because
“hairstyle can be a determinant of racial identity,” explaining that other courts had
1
We conclude that the notice of appeal was timely because the EEOC’s motion for leave
to amend—which in part challenged the basis for the district court’s dismissal of the original
complaint—is properly treated as a Rule 59(e) motion which tolled the time for appeal. See
Giuffre v. Deutsche Bank Nat. Trust Co., 759 F.3d 134, 137 (1st Cir. 2014) (holding that a
plaintiff’s post-judgment motion for leave to file an amended complaint tolled the time to appeal
because “[i]n substance, [the] motion challenged the legal foundation of the dismissal order and
called on the judge to either revoke that order or alter it to allow him leave to amend”); Trotter v.
Regents of Univ. of N.M., 219 F.3d 1179, 1183 (10th Cir. 2000) (holding that a Rule 15 motion
filed within the time limit for filing a Rule 59(e) motion tolls the time for filing a notice of
appeal); Bodin v. Gulf Oil Corp., 877 F.2d 438, 440 (5th Cir. 1989) (holding that a motion for
leave to amend constituted a timely Rule 59(e) motion, and thus, the time for filing a notice of
appeal commenced when the district court denied the motion).
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rejected that argument. See id. The district court also declined the EEOC’s
invitation to discard the immutable/mutable distinction for Title VII race
discrimination claims. See id. See also D.E. 27 at 1–2 (order denying leave to
amend because the EEOC had already presented its more detailed allegations as
legal arguments in support of the initial complaint, and those arguments had been
rejected).
The EEOC advances a number of arguments on appeal in support of its
position that denying a black person employment on the basis of her dreadlocks
through the application of a race-neutral grooming policy constitutes intentional
discrimination on the basis of race in violation of Title VII. The arguments, which
build on each other, are that dreadlocks are a natural outgrowth of the immutable
trait of black hair texture; that the dreadlocks hairstyle is directly associated with
the immutable trait of race; that dreadlocks can be a symbolic expression of racial
pride; and that targeting dreadlocks as a basis for employment can be a form of
racial stereotyping. See Br. of EEOC at 14–39.
A
Before we address these arguments, we discuss an overarching problem
concerning the EEOC’s liability theory. Despite some loose language in its
proposed amended complaint, the EEOC confirmed at oral argument that it is
proceeding only on a disparate treatment theory under 42 U.S.C. § 2000e-2(a)(1)
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(making it “unlawful [for a covered employer] to fail or refuse to hire or to
discharge any individual . . . because of such individual’s race, color, religion, sex
or national origin”), and is not pursuing a disparate impact theory under 42 U.S.C.
§ 2000e-2(k)(1) (permitting disparate impact claims for unlawful employment
practices and setting out applicable burdens of proof).
This matters because the two theories are not interchangeable, and “courts
must be careful to distinguish between the[m.]” Raytheon Co. v. Hernandez, 540
U.S. 44, 53 (2003). See also E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263,
1283 (11th Cir. 2000) (concluding that allowing plaintiffs who alleged disparate
treatment to assert a disparate impact claim “would unwisely conflate the distinct
theories of disparate impact and disparate treatment”). To prevail on a disparate
treatment claim, a Title VII plaintiff must demonstrate that an employer
intentionally discriminated against her on the basis of a protected characteristic.
See Ricci v. DeStefano, 557 U.S. 557, 577 (2009). In contrast, a disparate impact
claim does not require proof of discriminatory intent. A disparate impact claim
targets an employment practice that has an actual, though not necessarily
deliberate, adverse impact on protected groups. See id. Given the EEOC’s
disparate treatment claim, the proposed amended complaint had to contain
sufficient factual allegations to set out a plausible claim that CMS intentionally
discriminated against Ms. Jones, individually, because of her race.
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Despite its decision to assert only a disparate treatment claim, the EEOC at
times conflates the two liability theories, making disparate impact arguments in
support of its disparate treatment claim. See Br. of Chamber of Commerce of the
United States as Amicus Curiae at 14–19 (pointing this out). The EEOC, for
example, faults the district court for not allowing expert testimony on the “racial
impact of a dreadlock ban” and for failing to acknowledge “the critical
disadvantage at which the dreadlock ban places Black applicants.” Br. of EEOC at
7–8, 18 (emphasis added). It also asserts that “the people most adversely and
significantly affected by a dreadlocks ban, such as CMS’, are African-Americans.”
Id. at 31 (emphasis added). And it argues that “a policy which critically
disadvantages or affects members of one group over another” can support an
intentional discrimination claim. See Reply Br. of EEOC at 16 (emphasis added).
Because this is a disparate treatment case, and only a disparate treatment case, we
do not address further the EEOC’s arguments that CMS’ race-neutral grooming
policy had (or potentially had) a disproportionate effect on other black job
applicants.2
2
Statistical evidence, of course, can sometimes be probative of intentional
discrimination, see, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335–40 & n.20
(1977), but the EEOC did not allege, and does not claim, that there is statistical evidence
showing (or allowing a reasonable inference of) a pattern or practice of disparate treatment on
the part of CMS. Nor is there any claim that CMS applied its grooming policy differently to
black applicants or employees, as was the case in Hollins v. Atl. Co., Inc., 188 F.3d 652, 661 (6th
Cir. 1999).
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B
In its notice of supplemental authority the EEOC relies on the Supreme
Court’s recent decision in Young v. United Parcel Serv., Inc., 135 S. Ct. 1338(2015), a case involving 42 U.S.C. § 2000e(k)—a provision of the Pregnancy
Discrimination Act—to support its use of disparate impact arguments in this
action. Young, however, does not work a dramatic shift in disparate treatment
jurisprudence.
In Young, the Supreme Court dealt with the accommodation requirements of
the PDA. Specifically, it considered how to implement the statutory mandate that
employers treat pregnancy-related disabilities like nonpregnancy-related
disabilities in a situation where an employer does not treat all nonpregnancy-
related disabilities alike. Young held that a pregnant employee who seeks to show
disparate treatment in such a scenario may do so through the application of the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Young, 135 S. Ct. at 1353–54. If an employer offers
apparently legitimate reasons for failing to accommodate pregnant employees, the
plaintiff may assert that the proffered reasons are pretextual by providing
“sufficient evidence that the employer’s policies impose a significant burden on
pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons
are not sufficiently strong to justify the burden, but rather—when considered along
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with the burden imposed—give rise to an inference of intentional discrimination.”
Id. at 1354. For example, a plaintiff may provide evidence that an employer
accommodates a large percentage of nonpregnant workers while failing to
accommodate a large percentage of pregnant workers. See id. at 1354–55.
The rationale and holding in Young are based on, and therefore limited to,
the language in a specific provision of the PDA. Young is not, as the EEOC
suggests, automatically transferable to a disparate treatment case under Title VII
involving allegations of intentional racial discrimination.
Despite the textual differences between the Title VII disparate treatment
provision at issue here (§ 2000e-2(a)(1)) and the PDA provision at issue in Young
(§ 2000e(k)), the EEOC argues that the following language from Young supports
its use of disparate impact concepts in a disparate treatment case:
[D]isparate-treatment law normally permits an employer
to implement policies that are not intended to harm
members of a protected class, even if their
implementation sometimes harms those members, as long
as the employer has a legitimate, nondiscriminatory,
nonpretextual reason for doing so.
135 S. Ct. at 1350 (internal citations omitted). The quoted passage, however,
merely explains that disparate treatment liability attaches only when an employer
intentionally harms members of a protected group. It summarizes the familiar
framework courts use to assess disparate treatment claims at summary judgment,
where direct proof of intentional discrimination is unavailable: the McDonnell
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Douglas burden-shifting framework, which places the burden on the employer to
articulate a legitimate reason for taking an adverse employment action once an
employee establishes a prima facie case.
We do not read the passage from Young in the inverse to stand for the
proposition that an employer’s neutral policy can engender disparate treatment
liability merely because it has an unintended adverse effect on members of a
protected group. The crux of the disparate treatment inquiry, and the question the
McDonnell Douglas framework seeks to answer, is whether the employer
intentionally discriminated against particular persons on an impermissible basis,
not whether there was a disparate impact on a protected group as a whole. An
allegation of adverse consequences, without more, is not sufficient to state a claim
for disparate treatment. Cf. id. at 1355 (“the continued focus on whether the
plaintiff has introduced sufficient evidence to give rise to an inference of
intentional discrimination avoids confusing the disparate-treatment and disparate-
impact doctrines”).
IV
The question in a disparate treatment case is “whether the protected trait
actually motivated the employer’s decision.” Raytheon, 540 U.S. at 52 (ellipses
and internal quotation marks omitted). Generally speaking, “[a] plaintiff can prove
disparate treatment . . . by direct evidence that a workplace policy, practice, or
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decision relies expressly on a protected characteristic, or . . . by [circumstantial
evidence] using the burden-shifting framework set forth in McDonnell Douglas.”
Young, 135 S. Ct. at 1345. See also Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d
763, 768 n.3 (11th Cir. 2005) (explaining that McDonnell Douglas “is not the
exclusive means” for showing intentional discrimination through circumstantial
evidence).
Title VII does not define the term “race.” And, in the more than 50 years
since Title VII was enacted, the EEOC has not seen fit to issue a regulation
defining the term. See EEOC Compliance Manual, § 15-II, at 4 (2006) (“Title VII
does not contain a definition of ‘race,’ nor has the Commission adopted one.”).
This appeal requires us to consider, at least in part, what “race” encompasses under
Title VII because the EEOC maintains that “if [ ] individual expression is tied to a
protected trait, such as race, discrimination based on such expression is a violation
of the law.” Br. of EEOC at 20.
A
“The meaning of the word ‘race’ in Title VII is, like any other question of
statutory interpretation, a question of law for the court.” Village of Freeport v.
Barrella, 814 F.3d 594, 607 (2d Cir. 2016). When words are not defined in a
statute, they are “interpreted as taking their ordinary, contemporary, common
meaning,” Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014) (citation and
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internal quotation marks omitted), and one of the ways to figure out that meaning
is by looking at dictionaries in existence around the time of enactment. See, e.g.,
St. Francis College v. Al-Khazraji, 481 U.S. 604, 609–12 (1987) (consulting 19th
century dictionaries to determine the meaning of “race” in a case arising under 42
U.S.C. § 1981, which became law in 1866).
In the 1960s, as today, “race” was a complex concept that defied a single
definition. Take, for example, the following discussion in a leading 1961
dictionary: “In technical discriminations, all more or less controversial and often
lending themselves to great popular misunderstanding or misuse, RACE is
anthropological and ethnological in force, usu[ally] implying a physical type with
certain underlying characteristics, as a particular color of skin or shape of skull . . .
although sometimes, and most controversially, other presumed factors are chosen,
such as place of origin . . . or common root language.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 1870 (unabridged
1961).
Nevertheless, most dictionaries at that time tied “race” to common physical
characteristics or traits existing through ancestry, descent, or heredity. See id.(defining “race” as “the descendants of a common ancestor: a family, tribe, people,
or nation belonging to the same stock” or “a class or kind of individuals with
common characteristics, interests, appearance, or habits as if derived from a
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common ancestor,” or “a division of mankind possessing traits that are
transmissible by descent and sufficient to characterize it as a distinct human type
(Caucasian ~) (Mongoloid ~)”); A DICTIONARY OF THE SOCIAL SCIENCES 569
(Julius Gould & William Kolb eds. 1964) (“A race is a subdivision of a species,
individual members of which display with some frequency a number of hereditary
attributes that have become associated with one another in some measure through
considerable degree of in-breeding among the ancestors of the group during a
substantial part of their recent evolution.”); A DICTIONARY OF SOCIOLOGY 142 (G.
Duncan Mitchell ed. 1968) (“Biologically speaking the concept of race refers to a
population sharing a gene-pool giving rise to a characteristic distribution of
physical characteristics determined by heredity. There are no clear cut boundaries
between racial groups thus defined and considerable variations may be exhibited
within races.”). One specialty dictionary, while defining “race” as an
“anthropological term denoting a large group of persons distinguished by
significant hereditary physical traits,” cautioned that “[a] common misconception
is that cultural traits sufficiently differentiate races.” DICTIONARY OF POLITICAL
SCIENCE 440 (Joseph Dunne ed. 1964).
From the sources we have been able to review, it appears more likely than
not that “race,” as a matter of language and usage, referred to common physical
characteristics shared by a group of people and transmitted by their ancestors over
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time. Although the period dictionaries did not use the word “immutable” to
describe such common characteristics, it is not much of a linguistic stretch to think
that such characteristics are a matter of birth, and not culture.
There is little support for the position of the EEOC that the 1964 Congress
meant for Title VII to protect “individual expression . . . tied to a protected race.”
Br. of EEOC at 20. Indeed, from a legal standpoint, it appears that “race” was then
mostly understood in terms of inherited physical characteristics. See BLACK’S
LAW DICTIONARY 1423 (4th ed. 1951) (“Race. An ethnical stock; a great division
of mankind having in common certain distinguishing physical peculiarities
constituting a comprehensive class appearing to be derived from a distinct
primitive source. A tribal or national stock, a division or subdivision of one of the
great racial stocks of mankind distinguished by minor peculiarities. Descent.”)
(citing cases).
It may be that today “race” is recognized as a “social construct,” Ho by Ho v.
San Francisco Unified Sch. Dist., 147 F.3d 854, 863 (9th Cir. 1998), rather than an
absolute biological truth. See also Al-Khazraji, 481 U.S. at 610 n.4 (noting that
some, but not all, scientists have concluded that “racial classifications are for the
most part sociopolitical, rather than biological, in nature”); THE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1441 (4th ed. 2009) (usage
note for “race”: “The notion of race is nearly as problematic from a scientific point
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of view as it is from a social one.”). But our possible current reality does not tell
us what the country’s collective zeitgeist was when Congress enacted Title VII half
a century ago. “That race is essentially only a very powerful idea and not at all a
biological fact is, again, an emerging contemporary understanding of the meaning
of race.” Rhonda V. Magee Andrews, The Third Reconstruction: An Alternative to
Race Consciousness and Colorblindness in Post-Slavery America, 54 ALA. L.
REV. 483, 515 (2003). 3
B
If we assume, however, that the quest for the ordinary understanding of
“race” in the 1960s does not have a clear winner, then we must look for answers
elsewhere. Some cases from the former Fifth Circuit provide us with binding
guidance, giving some credence to Felix Frankfurter’s adage that “[n]o judge
writes on a wholly clean slate.” Walter Hamilton, Preview of a Justice, 48 YALE
3
Of note, some contemporary judicial decisions and dictionaries still provide
understandings of “race” tied to biological and physical characteristics. See, e.g., Abdullahi v.
Prada USA Corp., 520 F.3d 710, 712 (7th Cir. 2008) (Posner, J.) (“A racial group as the term is
generally used in the United States today is a group having a common ancestry and distinct
physical traits.”); 2 SHORTER OXFORD ENGLISH D ICTIONARY 2445 (5th ed. 2002) (defining “race” in
part as “a group or set, esp. of people, having a common feature or features,” or “a group of
living things connected by common descent or origin,” or “[a]ny of the major divisions of
humankind, having in common distinct physical features or ethnic background”). And in the
Geneva Convention Implementation Act of 1987, legislation that post-dated Title VII by about
two decades, Congress defined the term “racial group” as “a set of individuals whose identity as
such is distinctive in terms of physical characteristics or biological descent.” 18 U.S.C. §
1093(6). By citing to this provision, we do not mean to suggest that the definition of a term in
one statute can be automatically used when the same term is undefined in a separate statute. We
merely point out that in the late 1980s Congress still thought of “race,” in at least one context, as
including common physical characteristics.
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L.J. 819, 821 (1939) (quoting FELIX FRANKFURTER, THE COMMERCE CLAUSE
UNDER MARSHALL, TANEY, AND WAITE 12 (1937)). As we explain below, those
cases teach that Title VII protects against discrimination based on immutable
characteristics.
In Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975) (en
banc), we addressed a Title VII sex discrimination claim by a male job applicant
who was denied a position because his hair was too long. Although the employer
interpreted its neutral dress/grooming policy to prohibit the wearing of long hair
only by men, and although the plaintiff argued that he was the victim of sexual
stereotyping (i.e., the view that only women should have long hair), we affirmed
the grant of summary judgment in favor of the employer. See id. at 1092–93.
We held in Willingham that “[e]qual employment opportunity,” which was
the purpose of Title VII, “may be secured only when employers are barred from
discriminating against employees on the basis of immutable characteristics, such as
race and national origin. Similarly, an employer cannot have one hiring policy for
men and another for women if the distinction is based on some fundamental right.
But a hiring policy that distinguishes on some other ground, such as grooming or
length of hair, is related more closely to the employer’s choice of how to run his
business than equality of employment opportunity.” Id. at 1091. We “adopt[ed]
the view . . . that distinctions in employment practices between men and women on
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the basis of something other than immutable or protected characteristics do not
inhibit employment opportunity in violation of [Title VII].” Id. at 1092. And we
approved the district court’s alternative ground for affirming the grant of summary
judgment in favor of the employer—that because grooming and hair standards
were also imposed on female employees, men and women were treated equally.
See id. In closing, we reiterated that “[p]rivate employers are prohibited from
using different hiring policies for men and women only when the distinctions used
relate to immutable characteristics or legally protected rights.” Id. 4
Willingham involved hair length in the context of a sex discrimination claim,
but in Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), we applied the immutable
characteristic limitation to national origin, another of Title VII’s protected
categories. In Garcia a bilingual Mexican-American employee who worked as a
salesperson was fired for speaking Spanish to a co-worker on the job in violation
of his employer’s English-only policy, and he alleged that his termination was
based on his national origin in violation of Title VII (which we referred to as the
“EEO Act”). We affirmed the district court’s judgment in favor of the employer
following a bench trial. We noted that an expert witness called by the employee
had “testified that the Spanish language is the most important aspect of ethnic
4
On several occasions we have reaffirmed the central holding of Willingham that Title
VII protects against discrimination based on immutable characteristics, i.e., those that an
employee is born with or cannot change. See, e.g., Harper v. Blockbuster Entm’t Corp., 139 F.3d
1385, 1389 (11th Cir. 1998); Gilchrist v. Bolger, 733 F.2d 1551, 1553 (11th Cir. 1984).
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identification for Mexican-Americans, and it is to them what skin color is to
others,” and that testimony formed part of the basis for the claim that the
employer’s policy was unlawful. See id. at 267. Although the district court had
found that there were other reasons for the employee’s dismissal, we assumed that
the use of Spanish was a significant factor in the employer’s decision. See id. at
268.
We explained that neither Title VII nor common understanding “equates
national origin with the language that one chooses to speak,” and noted that the
English-only rule was not applied to the employee as a “covert basis for national
origin discrimination.” Id. Though the employee argued that he was discriminated
against on the basis of national origin “because national origin influences or
determines his language preference,” we were unpersuaded because the employee
was bilingual and was allowed to speak Spanish during breaks. Id. And even if
the employer had no genuine business need for the English-only policy, we said
that “[n]ational origin must not be confused with ethnic or sociocultural traits or an
unrelated status, such as citizenship or alienage.” Id. at 269. Citing Willingham,
we emphasized that Title VII “focuses its laser of prohibition” on discriminatory
acts based on matters “that are either beyond the victim’s power to alter, or that
impose a burden on an employee on one of the prohibited bases.” Id.
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The employee in Garcia also argued that the employer’s English-only policy
was “discriminatory in impact, even if that result was not intentional, because it
was likely to be violated only by Hispanic-Americans and that, therefore, they
ha[d] a higher risk of incurring penalties.” Id. at 270. We rejected this argument
as well because “there is no disparate impact if the rule is one that the affected
employee can readily observe and nonobservance is a matter of individual
preference,” and Title VII “does not support an interpretation that equates the
language an employee prefers to use with his national origin.” Id.
What we take away from Willingham and Garcia is that, as a general matter,
Title VII protects persons in covered categories with respect to their immutable
characteristics, but not their cultural practices. See Willingham, 507 F.2d at 1092;
Garcia, 618 F.2d at 269. And although these two decisions have been criticized by
some, see, e.g., Camille Gear Rich, Performing Racial and Ethnic Identity:
Discrimination by Proxy and the Future of Title VII, 79 N.Y.U. L. REV. 1134,
1213–21 (2004), we are not free, as a later panel, to discard the
immutable/mutable distinction they set out. See Cohen v. Office Depot, Inc., 204
F.3d 1069, 1076 (11th Cir. 2000) (“[T]he prior panel precedent rule is not
dependent upon a subsequent panel’s appraisal of the initial decision’s correctness.
Nor is the application of the rule dependent upon the skill of the attorneys or
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wisdom of the judges involved in the prior decision—upon what was argued or
considered.”).
We recognize that the distinction between immutable and mutable
characteristics of race can sometimes be a fine (and difficult) one, but it is a line
that courts have drawn. So, for example, discrimination on the basis of black hair
texture (an immutable characteristic) is prohibited by Title VII, while adverse
action on the basis of black hairstyle (a mutable choice) is not. Compare, e.g.,
Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 168 (7th Cir. 1976) (en
banc) (recognizing a claim for racial discrimination based on the plaintiff’s
allegation that she was denied a promotion because she wore her hair in a natural
Afro), with, e.g., Rogers v. Am. Airlines, Inc., 527 F. Supp. 229, 232 (S.D.N.Y.
1981) (holding that a grooming policy prohibiting an all-braided hairstyle did not
constitute racial discrimination, and distinguishing policies that prohibit Afros,
because braids are not an immutable characteristic but rather “the product of . . .
artifice”). As one commentator has put it, “the concept of immutability,” though
not perfect, “provides a rationale for the protected categories encompassed within
the antidiscrimination statutes.” Sharona Hoffman, The Importance of
Immutability in Employment Discrimination Law, 52 WM. & MARY L. REV. 1483,
1514 (2011).
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Critically, the EEOC’s proposed amended complaint did not allege that
dreadlocks themselves are an immutable characteristic of black persons, and in fact
stated that black persons choose to wear dreadlocks because that hairstyle is
historically, physiologically, and culturally associated with their race. That
dreadlocks are a “natural outgrowth” of the texture of black hair does not make
them an immutable characteristic of race. Under Willingham and Garcia, the
EEOC failed to state a plausible claim that CMS intentionally discriminated
against Ms. Jones on the basis of her race by asking her to cut her dreadlocks
pursuant to its race-neutral grooming policy. The EEOC’s allegations—
individually or collectively—do not suggest that CMS used that policy as proxy for
intentional racial discrimination. 5
C
The EEOC admitted in its proposed amended complaint that CMS’
grooming policy is race-neutral, but claimed that a “prohibition on dreadlocks in
the workplace constitutes race discrimination” because dreadlocks are a racial
characteristic, i.e., they “are a manner of wearing the hair that is physiologically
and culturally associated with people of African descent.” So, as noted earlier, the
5
The EEOC did assert that dreadlocks are an immutable characteristic of black persons,
but it made that assertion (which conflicted with what the proposed amended complaint alleged)
only in its motion for leave to amend. See D.E. 21 at 1. We do not consider this assertion, for
facts contained in a motion or brief “cannot substitute for missing allegations in the complaint.”
Kedzierski v. Kedzierski, 899 F.2d 681, 684 (7th Cir. 1990). Accord Associated Press v. All
Headline News Corp., 608 F. Supp. 2d 454, 464 (S.D.N.Y. 2009) (“Conclusory assertions in a
memorandum of law are not a substitute for plausible allegations in a complaint.”).
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claim that CMS intentionally discriminated against Ms. Jones on the basis of her
race depends on the EEOC’s conception of what “race” means (and how far it
extends) under Title VII. See Br. of EEOC at 20 (“In the Title VII context, if the
individual expression is tied to a protected race, discrimination based on such
expression is a violation of the law.”).
In support of its interpretation of Title VII, the EEOC relies on its own
Compliance Manual. See EEOC Compliance Manual, § 15-II, at 4 (2006) (“Title
VII prohibits employment discrimination against a person because of cultural
characteristics often linked to race or ethnicity, such as a person’s name, cultural
dress and grooming practices, or accent or manner of speech.”). But even if we
could ignore Willingham and Garcia, the Compliance Manual does not save the
day for the EEOC.
“[T]he rulings, interpretations, and opinions” of an agency charged with
enforcing a particular statute, “while not controlling upon the courts by reason of
their authority, do constitute a body of experience and informed judgment to which
courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944). The Compliance Manual, therefore, is entitled to
deference “only to the extent that [it has] the power to persuade.” Christensen v.
Harris Cty., 529 U.S. 576, 587 (2000) (citation and internal quotation marks
omitted). Factors relevant to determining the persuasiveness of the Compliance
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Manual, and thus the weight given to the EEOC’s guidance, include “the
thoroughness evident in its consideration, the validity of its reasoning, [and] its
consistency with earlier and later pronouncements[.]” Skidmore, 323 U.S. at 140.
The Compliance Manual contravenes the position the EEOC took in an
administrative appeal less than a decade ago. See Thomas v. Chertoff, Appeal No.
0120083515, 2008 WL 4773208, at *1 (E.E.O.C. Office of Federal Operations
Oct. 24, 2008) (concluding, in line with federal cases like Willingham and Rogers,
that a grooming policy interpreted to prohibit dreadlocks and similar hairstyles lies
“outside the scope of federal employment discrimination statutes,” even when the
prohibition targets “hairstyles generally associated with a particular race”). The
EEOC attempts to characterize Thomas as a case about “hair length,” which it
concedes is not an immutable trait, as opposed to “natural hair texture” or the
“other racial characteristics presented here.” Reply Br. of EEOC at 27 n.5. That is
not a basis for distinction, however, because the complainant in Thomas
specifically disputed the employer’s hair length policy in the context of “African
American males who wear ethnic hair styles such as braids.” See Thomas, 2008
WL 4773208, at *1. And the Commission, in dismissing his complaint, cited
Willingham and Rogers approvingly to support the proposition that “prohibitions
against ‘ethnic’ hairstyles generally associated with a particular race or ethnic
group” are “typically outside the scope of federal employment discrimination
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statutes because they do not discriminate on the basis of immutable
characteristics.” Id. In our view, the Compliance Manual is a change of course
from Thomas and, because the EEOC has not provided a reasoned justification for
this shift, we choose to not give its guidance much deference or weight in
determining the scope of Title VII’s prohibition of racial discrimination. See, e.g.,
Young, 135 S. Ct. at 1352 (declining to rely significantly on the EEOC Compliance
Manual because its guidelines were promulgated recently, took a position about
which the EEOC’s previous guidelines were silent, and contradicted positions the
EEOC had previously taken).
The Compliance Manual also runs headlong into a wall of contrary caselaw.
In the words of a leading treatise, “[c]ourts generally have upheld facially neutral
policies regarding mutable characteristics, such as facial hair, despite claims that
the policy has an adverse impact on members of a particular race or infringes on
the expression of cultural pride and identification.” BARBARA LINDEMANN &
PAUL GROSSMAN, 1 EMPLOYMENT DISCRIMINATION LAW 6-5 (5th ed. 2012).
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. See
Cooper v. Am. Airlines, Inc., 149 F.3d 1167, 1998 WL 276235, at *1 (4th Cir. May
26, 1998) (upholding district court’s 12(b)(6) dismissal of claims based on a
grooming policy requiring that braided hairstyles be secured to the head or at the
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nape of the neck); Campbell v. Alabama Dep’t of Corr., No. 2:13-CV-00106-RDP,
2013 WL 2248086, at *2 (N.D. Ala. May 20, 2013) (“A dreadlock hairstyle, like
hair length, is not an immutable characteristic.”); Pitts v. Wild Adventures, Inc.,
No. CIV.A.7:06-CV-62-HL, 2008 WL 1899306, at *5–6 (M.D. Ga. Apr. 25, 2008)
(holding that a grooming policy which prohibited dreadlocks and cornrows was
outside the scope of federal employment discrimination statutes because it did not
discriminate on the basis of immutable characteristics); Eatman v. United Parcel
Serv., 194 F. Supp. 2d 256, 259–67 (S.D.N.Y. 2002) (holding that an employer’s
policy prohibiting “unconventional” hairstyles, including dreadlocks, braids, and
cornrows, was not racially discriminatory in violation of Title VII); McBride v.
Lawstaf, Inc., No. CIV. A.1:96-CV-0196C, 1996 WL 755779, at *2 (N.D. Ga.
Sept. 19, 1996) (holding that a grooming policy prohibiting braided hairstyles does
not violate Title VII); Rogers, 527 F. Supp. at 232 (holding that a grooming policy
prohibiting an all-braided hairstyle did not constitute racial discrimination, and
distinguishing policies that prohibit Afros, because braids are not an immutable
characteristic but rather “the product of . . . artifice”); Carswell v. Peachford
Hosp., No. C80-222A, 1981 WL 224, at *2 (N.D. Ga. May 26, 1981) (“There is no
evidence, and this court cannot conclude, that the wearing of beads in one’s hair is
an immutable characteristic, such as national origin, race, or sex. Further, this
court cannot conclude that the prohibition of beads in the hair by an employer is a
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subterfuge for discrimination.”); Wofford v. Safeway Stores, Inc., 78 F.R.D. 460,
470 (N.D. Cal. 1978) (explaining that the “even-handed application of reasonable
grooming regulations has uniformly been held not to constitute discrimination on
the basis of race”) (internal citations omitted); Thomas v. Firestone Tire & Rubber
Co., 392 F. Supp. 373, 375 (N.D. Tex. 1975) (holding that a grooming policy
regulating hair length and facial hair, which was applied even-handedly to
employees of all races, did not violate Title VII or 42 U.S.C. § 1981). See also
Brown v. D.C. Transit System, 523 F.2d 725, 726 (D.C. Cir. 1975) (rejecting claim
by black male employees that race-neutral grooming regulation, which prohibited
most facial hair, violated Title VII despite contention by employees that the
regulation was “an ‘extreme and gross suppression of them as black men and (was)
a badge of slavery’ depriving them ‘of their racial identity and virility’”).
D
We would be remiss 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 even those calling for such an
interpretive change have different visions (however subtle) about how “race”
should be defined. Compare, e.g., Ian F. Haney Lopez, The Social Construction of
Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-
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C.L. L. REV. 1, 7 (1994) (defining “race” as “a vast group of people loosely bound
together by historically contingent, socially significant elements of their
morphology and/or ancestry”), and Rich, Performing Racial and Ethnic Identity,
79 N.Y.U. L. REV. at 1142 (“There is an urgent need to redefine Title VII’s
definition of race and ethnicity to include both biological, visible racial/ethnic
features and performed features associated with racial and ethnic identity.”), with,
e.g., D. Wendy Greene, Title VII: What’s Hair (and Other Race-Based
Characteristics) Got to Do With It?, 79 U. COLO. L. REV. 1355, 1385 (2008)
(“Race includes physical appearances and behaviors that society, historically and
presently, commonly associates with a particular racial group, even when the
physical appearances and behavior are not ‘uniquely’ or ‘exclusively’ ‘performed’
by, or attributed to a particular racial group.”), and Barbara J. Flagg, Fashioning a
Title VII Remedy for Transparently White Subjective Decisionmaking, 104 YALE
L. J. 2009, 2012 (1995) (suggesting that discrimination on the basis of race might
include “personal characteristics that . . . intersect seamlessly with [one’s racial]
self-definition”).
Yet the call for interpreting “race” as including culture has not been
unanimous. This is in part because culture itself is (or can be) a very broad and
ever-changing concept. See, e.g., Richard T. Ford, Race as Culture: Why Not?, 47
U.C.L.A. L. REV. 1803, 1813 (2000) (“Culture is a much more problematic
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category for legal intervention than race, because culture in a broad sense
encompasses almost any possible motivation for human behavior.”). Cf. Annelise
Riles, Cultural Conflicts, 71 L. & CONTEMP. PROBS. 273, 285 (2008) (“[C]ultures
are hybrid, overlapping, and creole: forces from trade to education to migration to
popular culture and transnational law ensure that all persons participate in multiple
cultures at once. Cultural elements circulate globally, and they are always
changing. From this point of view, ‘culture’ is more of a constant act of translation
and re-creation or re-presentation than it is a fixed and given thing.”).
Assuming that general definitional consensus could be achieved among
those who advocate the inclusion of culture within the meaning of “race,” and that
courts were willing to adopt such a shared understanding of Title VII, that would
only be the beginning of a difficult interpretive battle, and there would be other
very thorny issues to confront, such as which cultural characteristics or traits to
protect. See, e.g., Kenji Yoshino, Covering, 111 YALE L. J. 769, 893 (2002)
(“Even [in] . . . a culture-race analysis . . . one must still ask whether covering
demands pertaining to grooming are sufficiently constitutive of race to violate bans
on race discrimination.”). There would also be the related question of whether
cultural characteristics or traits associated with one racial group can be absorbed
by or transferred to members of a different racial group. At oral argument, for
example, the EEOC asserted that if a white person chose to wear dreadlocks as a
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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.
The resolution of these issues, moreover, could itself be problematic. See
Ford, Race as Culture, 47 U.C.L.A. L. REV. at 1811 (explaining that recognizing a
right to cultural protection under the ambit of “race” would require “courts to
determine which expressions are authentic and therefore deserving of protection,”
and the “result will often be to discredit anyone who does not fit the culture style
ascribed to her racial group”). Even if courts prove sympathetic to the “race as
culture” argument, and are somehow freed from current precedent, how are they to
choose among the competing definitions of “race”? How are they (and employers,
for that matter) to know what cultural practices are associated with a particular
“race”? And if cultural characteristics and practices are included as part of “race,”
is there a principled way to figure out which ones can be excluded from Title VII’s
protection?
We cannot, and should not, forget that we—and courts generally—are
tasked with interpreting Title VII, a statute enacted by Congress, and not with
grading competing doctoral theses in anthropology or sociology. Along these
lines, consider the critique by Richard Ford of the attempt to have Title VII protect
cultural characteristics or traits associated with race:
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Once a status is ascribed, it is “immutable” in the
pragmatic sense that the individual cannot readily alter it.
This is the sense in which immutability is relevant to
anti-discrimination law.
The mutability of a racial characteristic then, is
strictly speaking, irrelevant, but not because—as
difference discourse would have it—anti-discrimination
law should prohibit discrimination based on mutable as
well as immutable racial characteristics, but rather
because racial characteristics generally are irrelevant.
And it is quite right to say that anti-discrimination law
prohibits discrimination on the basis of “immutable
characteristics.” But it does not follow that the immutable
characteristics in question are characteristics of race;
instead they are any characteristic of potential plaintiffs
that may be proxies for racial status.
This cuts against some common locutions that the
law prohibits discrimination against racial groups; that it
prohibits discrimination on the basis of racial
characteristics; that it protects racial minorities; worst of
all that it “protects race.” On my formulation it does none
of these. Indeed it could not do these things because to
do them it would first require a definition of a racial
group, racial characteristic, and/or race—none of which
courts have readily [at] hand. Instead, law prohibits
discrimination on the basis of race—something it can do
without knowing what race is and indeed without
accepting that race is something that is knowable. To
prohibit discrimination on the basis of race, we need only
know that there is a set of ideas about race that many
people accept and decide to prohibit them from acting on
the basis of these ideas.
Richard Ford, RACIAL CULTURE: A CRITIQUE 103 (2005).
Our point is not to take a stand on any side of this debate—we are, after all,
bound by Willingham and Garcia—but rather to suggest that, given the role and
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complexity of race in our society, and the many different voices in the discussion,
it may not be a bad idea to try to resolve through the democratic process what
“race” means (or should mean) in Title VII. Cf. Juan F. Perea, Ethnicity and
Prejudice: Reevaluating ‘National Origin’ Discrimination under Title VII, 35 WM.
& MARY L. REV. 805, 861 (1994) (proposing that Congress amend Title VII to
protect against discrimination based on ethnic traits). 6
V
Ms. Jones told CMS that she would not cut her dreadlocks in order to secure
a job, and we respect that intensely personal decision and all it entails. But, for the
reasons we have set out, the EEOC’s original and proposed amended complaint did
not state a plausible claim that CMS intentionally discriminated against Ms. Jones
because of her race. The district court therefore did not err in dismissing the
original complaint and in concluding that the proposed amended complaint was
futile.
AFFIRMED.
6
Religion is, of course, different from race in many ways, but it bears noting that
Congress amended Title VII in 1972 to expand protection for “religious observance and
practice.” See 42 U.S.C. § 2000e(j); E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct.
2028, 2034 (2015). It has not, however, prohibited discrimination on the basis of cultural
practices associated with race.
35