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It is not uncommon for employers to have policies regarding the appearance of its employees, including policies pertaining to permitted hairstyles. So what happens when a company rescinds a job offer to an African American applicant because he refuses to cut his dreadlocks? Is this race discrimination? According to a district court in the Southern District of Alabama, the answer is no. But, it still may be unlawful employment discrimination. Read on …
All employees are protected under Title VII of the Civil Rights Act of 1964 and Ohio R.C. § 4112.02(I) from being discriminated against or retaliated against by their employers on the basis of race. However, in EEOC v. Catastrophe Management Solutions, the Alabama district court determined that the employer’s appearance policy did not amount to race discrimination against this African American applicant, finding that there was a difference between immutable and mutable characteristics. The Court found that someone’s race fits into the former category in that it is unchangeable or “immutable.” Conversely, someone’s hairstyle, according to the Court, is a mutable or changeable trait. Thus, even if an employer discriminated against an employee or applicant based on his or her hairstyle, that type of discrimination was not the type of illegal discrimination barring race discrimination. The court held:
It has long been settled that employers’ grooming policies are outside the purview of Title VII. immutable characteristics, such as race and national origin. . . . [A] hiring policy that distinguishes on some . . . ground [other than race], such as grooming codes or length of hair, is related more closely to the employer’s choice of how to run his business than to equality of employment opportunity. . . . Hair length is not immutable and in the situation of employer vis a vis employee enjoys no constitutional protection. If the employee objects to the grooming code he has the right to reject it by looking elsewhere for employment, or alternatively he may choose to subordinate his preference by accepting the code along with the job.
Interestingly, what may have saved the employer in this case is not that the fact that one’s hairstyle is “changeable,” but that in this particular case, the alleged illegal conduct was that of race discrimination. What if the employee had been Rastafarian who had dreadlocks? Even if that same employee were African American as well, the source of his discrimination claim may have been religious discrimination instead of race, which could have resulted in a different outcome for the employee. The thinking here is that if the hairstyle (dreadlocks in this case) are based on a person’s religion, suddenly, the hairstyle becomes less changeable.
Take another situation for example. What if the same employee policy banned the wearing of hats or any other type of clothing on the head? What if a Middle Eastern female employee wore a hijab as part of her religion? She likely would have a stronger claim under the laws protecting religious discrimination rather than national origin discrimination.
But with the issue of dreadlocks, a potential employer cannot ask the applicant, “by the way, are you Rastafarian?” or another religion. So, there is no clear cut way as to how this situation should resolve at the interview stage. However, once an employee or applicant says that my hairstyle is based on my religious beliefs, the employer or potential employer is on notice and cannot discriminate.
Sometimes the answers to employment law questions are not immediately clear, which is why it is important to quickly get the advice of a qualified employment law attorney – even if you are still employed.
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