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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 GPSOLO | September/October 2019 | ambar.org/gpsolomag 36 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 nec- essary to overcome a judicial endured explicit and precedent that denies Black peo- ple protection from employment implicit discrimination. discrimination against their nat- ural hair textures and styles; the socioeconomic harms and harm- ful 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, GPSOLO | September/October 2019 | ambar.org/gpsolomag 37 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 def- inition 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.

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