Monday, September 19, 2016

11th circuit decision on dreadlocks and race asks big questions on the meaning of discrimination

In EEOC v. Catastrophe Management Solutions [pdf], the EEOC asked the 11th Circuit to determine whether banning an African-American employee from wearing dreadlocks constitutes race discrimination.

In a lengthy decision that discusses the very concept of race, the court answered the question “no”.

The case involved an African-American customer service representative who, after being conditionally hired for a position with Catastrophe Management Solutions, was told that she would have to cut her dreadlocks to comply with the company’s grooming policy. When she refused, it rescinded the offer.

The EEOC argued that a rule against dreadlocks constitutes race discrimination because dreadlocks, which are physiologically and culturally associated with people of African descent, act as a proxy for race.

In disagreeing with the EEOC, the court delved into a philosophical debate over whether race is a biological or cultural construct. It concluded it was the former:
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. … 
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. …
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?
The case is a fascinating read on whether protected classes are tied to biological characteristics or societal constructs, and whether what is considered immutable can change with changes in ethos. Or, to look at this question differently, should the law fix the definition of “race” in 1964 when Congress passed Title VII, or should that definition change over time with changes in society?

While I believe the 11th Circuit correctly decided Catastrophe Management Solutions on the specific issue of whether this employer used dreadlocks as a proxy for race discrimination, how one ultimately comes down on the more general issue of biology versus culture will also dictate whether you believe, for example, sex discrimination covers LGBT issues.

There are no easy answers to these deep philosophical questions. I am just happy that the courts are open to the debate.