Workplace Discrimination and Eurocentric Beauty Standards by Kim Carter

Workplace Discrimination and Eurocentric Beauty Standards By Kim Carter

Do not remove the kinks from to European beauty standards of being “unprofessional,” your hair—remove them from by straitening—or removing the “unkept,” and “messy” (for more, your brain. kink from—Black hair. Today, see “The ‘Good Hair’ Study: —Marcus Garvey these biases remain relevant in Explicit and Implicit Attitudes American society and our legal Toward Black Women’s Hair,” arcus Garvey was system, nearly 100 years later. the Perception Institute, February a political activ- Now, in the midst of a renewed 2017, kpcne.ws/2OXrkBC). Thus, ist, publisher, and wave of social outcries to right African, Pan-African, and Black journalist whose historical injustices against Black people are pressured to conform to life’s work included people across the nation, Cali- unrealistic European standards of Msparking a Pan-African and Ras- fornia has passed SB-188, known beauty in their pursuit of employ- tafarian movement in America as the “CROWN Act” (which ment or education. as he sought to enrich the lives stands for Creating a Respectful The bias concerning Black hair of oppressed Blacks. Garvey’s and Open Workplace for Natural has created a cultural phenomenon ideology—however radical for Hair; kpcne.ws/33FsKEu), mak- where Black people—attempting the 1920s—far predates the U.S. ing California the first state to to avail themselves of their con- Civil Rights movement of the ban employment discrimination stitutional right to “life, liberty, 1960s and the enactment of the against employees who choose to and the pursuit of happiness” by Civil Rights Act of 1964. Yet, wear natural hairstyles. participating in employment and the quote above speaks to the Besides skin tone, hair texture education practices—are often heart of an ongoing social con- is historically a physical trait and subjected to grooming policies struct of injustice around Black ethnic indicator of African descent. that are rooted in Eurocentric identity and inferior biases However, in the United States, standards. These standards require toward African features, which Black hair textures and natural Blacks to shun their natural tresses

resulted in Blacks conforming styles carry negative connotations and take extreme—and at times GETTYIMAGES.COM/FG TRADE

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PUBLISHED IN GPSOLO, VOLUME 36, NUMBER 5, SEPTEMBER/OCTOBER 2019 © 2019 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION. harmful—measures to change In the case EEOC v. Catastro- allege disparate impact. Courts their hair textures or remove their phe Management Solutions, an will likely find that Title VII has hair all together, to conform to “immutable characteristic” was not been violated if the grooming social norms. defined as one that is beyond a policy appears to be neutral on its In the alternative, Blacks who person’s power to alter (EEOC face (Id.). don their natural hair texture v. Catastrophe Mgmt. Sols. (2017) The 11th Circuit’s decision in and wear natural hairstyles— 876 F.3d 1273, 1276). The court Catastrophe Management Solu- and thereby essentially refuse to held, “banning dreadlocks in the tions underscores this rationale conform to employers’ subjec- workplace under a race-neutral further by acknowledging that tive grooming standards—have grooming policy—without neither it, nor any other court, endured explicit and implicit dis- more—does not constitute can broaden the definition of crimination, including, but not intentional race-based discrimi- race under Title VII as the EEOC limited to, being demoted, passed nation.” The court has considered sought, “to include anything over for employment or promo- tion opportunities, or terminated. This article will examine the legal and social landscape sur- Blacks who wear rounding Black hair bias and natural hairstyles have discuss: why legislation is necessary to overcome a judicial endured explicit and precedent that denies Black people protection from employment implicit discrimination. discrimination against their natural hair textures and styles; the socioeconomic harms and harmful health conditions that Black evidence in other cases of a per- purportedly associated with the people incur as a result of hair son’s natural hair to be the state culture of a protected group” (Id. discrimination; and the trend of the hair reverts to without any at 1278). The court further notes employment laws that are seek- manipulation; for some Black that if mutable characteristics ing to rectify the disparate impact people, that natural hair state should be considered in Title VII hair discrimination has had on may be an afro (Id. at 1274). analysis, it was up to Congress to Blacks to ultimately protect indi- The court in Catastrophe Man- revise the Act to include mutable viduals’ civil rights. agement Solutions held the Equal characteristics in race discrimina- Employment Opportunity Com- tion analyses (Id. at 1277). BLACK HAIRSTYLES mission (EEOC) failed to plead Indeed, the judiciary’s analysis AND TITLE VII disparate treatment in failing to of how Title VII applies in race To understand why legislation is assert dreadlocks are an immu- discrimination cases exposes the necessary to protect Black peo- table characteristic of black statute’s limitations and demon- ple from subjective and unfair individuals. Indeed, the court rea- strates how, over the years, Title discrimination based on their nat- soned that natural hair styles such VII has failed to protect Black ural hair texture and hairstyles, as locks, twists, and braids are people from disparate treatment one must examine the courts’ mutable characteristics that may when wearing natural hair or nat- findings and reasoning in hair be associated with the race, but ural hairstyles in workplaces. discrimination cases. are not—in and of themselves— Title VII of the Civil Rights protected under Title VII. As CORRECTIVE ACTION Act of 1964 prohibits employ- a result, employers are legally AT THE STATE AND ers from discriminating against permitted to enforce groom- MUNICIPAL LEVELS employees on the basis of sex, ing policies—even if the practice As discussed above, the courts race, color, national origin, and unfairly applies European beauty have concluded that Black people religion. The courts have inter- standards to Black people—absent donning their natural hairstyles preted race as an immutable any other evidence of race dis- are not afforded federal protec- characteristic. crimination. The EEOC did not tion under Title VII. In response,

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PUBLISHED IN GPSOLO, VOLUME 36, NUMBER 5, SEPTEMBER/OCTOBER 2019 © 2019 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION. states and municipalities are now Commission on Human Rights expands the definition of race and stepping up to address the issue. (NYCCHR) released new guide- cinches the gap exposed by the On the state level, the Cal- lines to protect “New Yorker’s federal courts’ interpretation of ifornia legislature passed the rights to maintain natural hair or mutable versus immutable race CROWN Act, which Governor hairstyles that are closely asso- characteristics in Title VII cases Gavin Newsome signed into law ciated with their racial, ethnic, (kpcne.ws/2TzGGuV; kpcne. on July 3, 2019. The Act officially or cultural identities. For Black ws/2HaLjGL). Similar legislation goes into effect January 1, 2020. people, this includes the right to has also been introduced by state California State Senator maintain natural hair, treated or lawmakers in New Jersey. Holly J. Mitchell introduced the CROWN Act because it acknowledges that our nation’s The CROWN Act’s history is “riddled with laws and societal norms that equated definition of race ‘blackness,’ and . . . physical includes “hair texture traits,” such as “dark skin, kinky and curly hair to a badge of infe- and protective riority, sometimes subject to separate and unequal treatment” hairstyles.” (The CROWN Act, Preamble). As such, the Act expands the definition of race, as identified in the untreated hairstyles such as locs, DISPARATE IMPACT California Fair Employment and cornrows, twists, braids, Bantu While the EEOC promulgated Housing Act and state laws gov- knots, fades, Afros, and/or the regulations that allow employ- erning persons in public schools, right to keep hair in an uncut or ers the freedom to enforce to “include traits historically untrimmed state” (NYC Com- neutral grooming policies, the associated with race, including, mission on Human Rights Legal definition of “neutral” is not but not limited to, hair texture Enforcement Guidance on Race clear (EEOC Compliance Man- and protective hairstyles” (The Discrimination on the Basis of ual, 915.003, Section VII; kpcne. CROWN Act, Section 2(b)). Hair; kpcne.ws/2OYjgko). Sim- ws/2Mk5Mx0), and the prac- According to the text of the Act, ilar to the CROWN Act, these tice of enforcement has left “‘Protective hairstyles’ includes, regulations were promulgated to Black people exposed to adverse but is not limited to, such hair- address the disparate impact Black employment actions for wearing styles as braids, locks, and twists” people have endured by seemingly their natural hair—whether the (The CROWN Act, Section 2(c)). race-neutral grooming policies ramifications are intended or not. The Act further seeks to explain that nonetheless have histori- Numerous media reports are and address a fallacy applied by cally applied unrealistic European replete with examples of indi- the federal courts in hair discrim- beauty standards to Blacks. viduals having been denied ination cases: “Federal courts While NYCCHR addresses employment, terminated from accept that Title VII of the Civil the disparate impact of Black hair employment, or subjected to Rights Act of 1964 prohibits dis- discrimination in employment, other adverse actions because of crimination based on race, and the agency only has jurisdiction their hairstyles, due to employers’ therefore protects against discrim- within New York City. On July 12, or schools’ “neutral” grooming ination against afros. However, 2019, New York state lawmakers policies. the courts do not understand that expanded the New York Human For example, in July 2019 afros are not the only natural pre- Rights and Dignity for All Stu- Kerion Washington, a 17-year- sentation of Black hair. Black hair dents Act to include protections old Black male, claims he was can also be naturally presented in for Black students who choose denied employment at Six Flags braids, twists, and locks” (The to wear their natural hair, making Over Texas after he refused to CROWN Act, Section 1(e)). New York the second state to cod- cut off his locks as a condition On the municipal level, in ify protections for Blacks similar to of employment. The manage- February 2019 New York City’s California’s CROWN Act—which ment purportedly made light of

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PUBLISHED IN GPSOLO, VOLUME 36, NUMBER 5, SEPTEMBER/OCTOBER 2019 © 2019 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION. the request, stating, “it’s just hair California, because of his “dis- to three times more frequently and it would grow back” (Sarah tracting” haircut—which included than White women (Lauren A. Sarder, “Teen Whose Hair Cost lines on the side of his head. After Wise et al., “Hair Relaxer Use Him Job at Six Flags Over Texas his mother wrote an open letter and Risk of Uterine Leiomy- Turns Heads at Modeling Agency,” to the school and took to social omata in African-American Dallas Morning News, July 6, 2019; media, calling for a discussion on Women,” American Journal kpcne.ws/2TxMc0Y). diversity and inclusion regard- of Epidemiology, March 2012 Similarly, in May 2018 Brit- ing the middle school’s grooming (175:5) at 432–440; kpcne. tany Noble’s employment as policy, the American Civil Liber- ws/2OXZW6z). Scientists ruled a news anchor was terminated ties Union of Northern California out inherent risk factors as the after she allegedly endured a took notice and surmised that reason for this disparity. Instead, series of race-related incidents, the school’s conduct invaded the study determined that the use including criticisms for wearing the student’s right to “expressive of hair relaxers or chemical hair her natural hair, in natural Black conduct” that reflects his culture straighteners actually increased hairstyles, while on the air. Noble (Avery Matera, “A Black Student Black women’s exposure to claims to have filed a discrimina- Was Suspended Because of Shaved harmful tumor-causing hor- tion complaint with her former Head,” Teen Vogue, March 21, mones. While uterine fibroids employer in 2017, after being 2018; kpcne.ws/306Af4P). are benign, they can result in told by her manager that “natu- These accounts demonstrate gynecologic morbidity and are ral hair was unprofessional, the how hair discrimination affects the leading indication for hys- equivalent to him throwing on Black citizens’ everyday access terectomy in the United States. a baseball cap to go to the gro- to employment and education, Historically requiring Black cery store. . . .” (Christina Santi, solely on subjective grounds, people to conform to Eurocentric “Black News Anchor Fired After without any other legitimate standards of beauty has resulted in Wearing ‘Unprofessional’ Nat- purpose. many people undergoing harm- ural Hair,” Ebony, January 16, ful chemical treatments to alter the 2019; kpcne.ws/31F9Vzd). IMPLICATIONS FOR BLACK texture of their hair. It is estimated Hair discrimination is not WOMEN’S HEALTH that nearly 80 percent of Black solely relegated to employment Moreover, the effects of these women exposed to these chemi- spheres—Black students also “neutral” grooming policies have cals will develop uterine fibroids experience discrimination and been disastrous for Black women’s over the course of their life. are denied access to education and health. In recent years, science has participation in athletic programs confirmed that Black women who CONCLUSION because of their natural hairstyles. have resorted to chemical treat- It has been nearly 100 years since For instance, in Decem- ments to assimilate to European Marcus Garvey called out the ber 2018 Andrew Johnson, a beauty standards often do so at assimilation tactics rooted in hair high school student, endured great risk to their health. straightening; now is the time to great embarrassment and pub- A study conducted from 1997 “remove the kink” from Ameri- lic humiliation when a referee to 2009 surveying more than ca’s social fabric and liberate Black forced him to cut off his locks 23,000 women concluded that people with the freedom to express or forfeit a high-stakes wrestling Black women developed uter- their uniqueness without fear of match. Johnson was denied a less ine leiomyomata tumors (also reprisal, or being stripped of their extreme alternative—to wrestle known as uterine fibroids) two livelihoods and education. n with a cap over his hair. Media reports claim that the referee in As counsel at Klinedinst PC, Kim Carter (kcarter@klinedinstlaw. question had a history of engag- com) represents California businesses in employment issues ing in racist conduct toward involving race/disability discrimination, sexual harassment, and other Black students, prior to this wage-and-hour disputes. She helps clients to avoid litigation incident (kpcne.ws/2ZbGTWw). by negotiating contracts, auditing records, investigating Also in 2018, a 14-year-old complaints, and reviewing employment policies. She conducts Black student was suspended sexual harassment prevention and sensitivity training and from middle school in Fresno, frequently speaks on employment topics and emerging issues.

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