26
Fla. L. Weekly Fed. C782aop of Form
Fla. L. Weekly Fed. C782aop of Form
Civil
rights — Employment discrimination — Disparate treatment — Action by Equal
Employment Opportunity Commission on behalf of black job applicant whose offer
of employment was rescinded pursuant to employer’s race-neutral grooming policy
when applicant refused to cut off her dreadlocks — EEOC’s original and
proposed amended complaint did not state plausible claim that employer
intentionally discriminated against applicant because of her race — EEOC, in
both proposed amended complaint and its appellate briefs, conflated distinct
Title VII theories of disparate treatment, the sole theory on which EEOC was
proceeding, and disparate impact, a theory EEOC expressly disclaimed —
Controlling precedent holds that Title VII prohibits discrimination based on
immutable traits, and proposed amended complaint did not assert that
dreadlocks, although culturally associated with race, are an immutable
characteristic of black persons — Discussion of race in context of immutable
traits and cultural associations
rights — Employment discrimination — Disparate treatment — Action by Equal
Employment Opportunity Commission on behalf of black job applicant whose offer
of employment was rescinded pursuant to employer’s race-neutral grooming policy
when applicant refused to cut off her dreadlocks — EEOC’s original and
proposed amended complaint did not state plausible claim that employer
intentionally discriminated against applicant because of her race — EEOC, in
both proposed amended complaint and its appellate briefs, conflated distinct
Title VII theories of disparate treatment, the sole theory on which EEOC was
proceeding, and disparate impact, a theory EEOC expressly disclaimed —
Controlling precedent holds that Title VII prohibits discrimination based on
immutable traits, and proposed amended complaint did not assert that
dreadlocks, although culturally associated with race, are an immutable
characteristic of black persons — Discussion of race in context of immutable
traits and cultural associations
EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CATASTROPHE
MANAGEMENT SOLUTIONS, Defendant-Appellee. 11th Circuit. Case No. 14-13482.
September 15, 2016. Appeal from the U.S. District Court for the Southern
District of Alabama (No. 1:13-cv-00476-CB-M).
EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CATASTROPHE
MANAGEMENT SOLUTIONS, Defendant-Appellee. 11th Circuit. Case No. 14-13482.
September 15, 2016. Appeal from the U.S. District Court for the Southern
District of Alabama (No. 1:13-cv-00476-CB-M).
(Before
JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO,* District Judge.)
JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO,* District Judge.)
(JORDAN,
Circuit Judge.) 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.
Circuit Judge.) 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 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 offered any
explanation for its change in 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.
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 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 offered any
explanation for its change in 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.
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.
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
interview. She arrived at CMS for her interview several days later dressed in a
blue business suit and wearing her hair in short dreadlocks.
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
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.
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.
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.
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.
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.
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.
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[.]”
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.”
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.”
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.”
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.”
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 complaint did not allege that
dreadlocks are an immutable characteristic of black persons.
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 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) [25 Fla. L.
Weekly Fed. C1681a] (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) [21 Fla.
L. Weekly Fed. S853a]; Franklin v. Curry, 738 F.3d 1246, 1248 n.1 (11th
Cir. 2013) [24 Fla. L. Weekly Fed. C882a].
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) [25 Fla. L.
Weekly Fed. C1681a] (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) [21 Fla.
L. Weekly Fed. S853a]; Franklin v. Curry, 738 F.3d 1246, 1248 n.1 (11th
Cir. 2013) [24 Fla. L. Weekly Fed. C882a].
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) [20 Fla. L. Weekly Fed. S267a]. 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’ ”).
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) [20 Fla. L. Weekly Fed. S267a]. 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’ ”).
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.”
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 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).
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 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.
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) (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).
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) (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) [17 Fla. L. Weekly Fed. S10a]. 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) [21 Fla. L. Weekly Fed. S1049a]. 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.
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) [17 Fla. L. Weekly Fed. S10a]. 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) [21 Fla. L. Weekly Fed. S1049a]. 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.
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
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
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) [25 Fla. L. Weekly Fed. S155a], 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.
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) [25 Fla. L. Weekly Fed. S155a], 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 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 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 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.
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:
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.
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
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.
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
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”).
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 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) [18 Fla. L. Weekly
Fed. C507a] (explaining that McDonnell Douglas “is not the exclusive
means” for showing intentional discrimination through circumstantial evidence).
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 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) [18 Fla. L. Weekly
Fed. C507a] (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.
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) [24 Fla. L. Weekly Fed. S535a] (citation and 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).
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) [24 Fla. L. Weekly Fed. S535a] (citation and 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).
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
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).
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
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 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.
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 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).
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 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
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 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 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.
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 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.
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 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
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 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 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.
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 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.
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.
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.
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 wisdom of the judges involved in the prior
decision — upon what was argued or considered.”).
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 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).
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).
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
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 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.”).
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 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.
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 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.
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 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, 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”). Because the EEOC has not provided a reasoned justification for changing
course in the Compliance Manual, and has opted not to address Thomas in
its reply brief, 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).
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, 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”). Because the EEOC has not provided a reasoned justification for changing
course in the Compliance Manual, and has opted not to address Thomas in
its reply brief, 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).
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 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
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’ ”).
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 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
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.-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”).
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.-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 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.”).
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 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 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.
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 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?
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:
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:
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.
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.
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.
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).
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 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
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 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.
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.
__________________
*The
Honorable Eduardo Robreño, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
Honorable Eduardo Robreño, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
1We
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).
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).
2Statistical
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).
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).
3Of
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 DICTIONARY 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.
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 DICTIONARY 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.
4On
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).
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).
5The
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.”).
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.”).
6Religion
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) [25 Fla.
L. Weekly Fed. S300a]. It has not, however, prohibited discrimination on the basis
of cultural practices associated with race.
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) [25 Fla.
L. Weekly Fed. S300a]. It has not, however, prohibited discrimination on the basis
of cultural practices associated with race.
* *
*
*