26
Fla. L. Weekly Fed. C1058aTop 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of employment was rescinded pursuant to employer’s race-neutral grooming policy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

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Plaintiff-Appellant, v. CATASTROPHE MANAGEMENT SOLUTIONS,
Defendant-Appellee. 11th Circuit. Case No. 14-13482. December 13, 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.)

[Original Opinion at 26 Fla. L. Weekly Fed. C782a]

(JORDAN, Circuit Judge.) We withdraw
our previous opinion, dated September 15, 2016, and published at 837 F.3d 1156,
and issue this revised opinion:

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offer of employment was rescinded by Catastrophe Management Solutions pursuant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 persuasively explained why it changed 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.

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.

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.

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.

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.

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.

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.

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.

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[.]”

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.”

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.”

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.”

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.

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].

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’ ”).

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.”

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).

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.

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).

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.

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

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.

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 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:

[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.

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.

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”).

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).

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.

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).

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).

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).

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.

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).

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

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.

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.

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

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.

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.

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.

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 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

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.”).

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.

“[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.

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 and Rogers, 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”). The EEOC
attempts to characterize Thomas as a case about “hair length,” which it
concedes is not an immutable trait, as opposed to “natural hair texture” or the
“other racial characteristics presented here.” Reply Br. of EEOC at 27 n.5.
That is not a basis for distinction, however, because the complainant in Thomas
specifically disputed the employer’s hair length policy in the context of
“African American males who wear ethnic hair styles such as braids.” See
Thomas, 2008 WL 4773208, at *1. And the Commission, in dismissing his
complaint, cited Willingham and Rogers approvingly to support the
proposition that “prohibitions against ‘ethnic’ hairstyles generally associated
with a particular race or ethnic group” are “typically outside the scope of
federal employment discrimination statutes because they do not discriminate on
the basis of immutable characteristics.” Id. In our view, the Compliance
Manual is a change of course from Thomas and, because the EEOC has not
provided a reasoned justification for this shift, 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).

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’ ”).

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”).

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.”).

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.

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?

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:

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.

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.

 

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.

Richard 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

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.

AFFIRMED.

__________________

*The 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).

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).

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.

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).

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.”).

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.