Federal appeals court rules it’s okay to discriminate against black hairstyles like dreadlocks

A recent ruling by the 11th US Circuit Court of Appeals is literally splitting hairs on how to prove racial discrimination in the workplace.

The case involved Chastity Jones, a black woman, who was hired by the Mobile, Alabama-based insurance company Catastrophe Management Solutions in 2010. While getting the necessary paperwork, a white human resources manager told Jones in private that her dreadlocks were against company policy. They “tend to get messy,” Jones was told. Jones refused to comply and returned the paperwork accordingly.

In response, the Equal Employment Opportunity Commission filed a lawsuit against CMS on Jones’s behalf, arguing that CMS’s “race-neutral grooming policy” disproportionately targeted African Americans for a common hairstyle they wear based on their unique hair texture. However, the court ruled 3-0 last Thursday that racial discrimination had to be based on traits that didn’t change, and the EEOC failed to prove unchangeable characteristics included dreadlocks.

“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,” Judge Adalberto Jordan wrote. “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.”

According to the Wall Street Journal, the court focused on the difference between immutable and mutable characteristics to avoid confronting the breadth of what it means to treat race as a social construct.

This, however, is a category mistake. Sure, hairstyles change, but society doesn’t value all hairstyles the same way on everyone. And race is often the deciding factor.

Black people may have a choice in how they style their hair, but they don’t have control in how society at large understands their hair — however they wear it.

Inconsistent attitudes toward dreadlocks also prove this point. In his latest New York Fashion Week runway show, Marc Jacobs styled his mostly nonblack models in faux dreadlocks to showcase the latest “high-fashion” look.

Meanwhile, the same hairstyle has been treated like a fashion faux pas or the punchline of a joke on black people. TV personality Giuliana Rancic infamously said Zendaya looked like she “smell[ed] like patchouli oil … or weed” while wearing dreadlocks at the 2015 Academy Awards.

Rancic later apologized, but not until after Zendaya pointed out the problem on Twitter: “There is already harsh criticism of African American hair in society without the help of ignorant people who choose to judge others based on the curl of their hair.”

These attitudes even factor into federal guidelines. In April 2014, the Army sparked controversy after updating its hair grooming rules in Army Regulation 670-1 to specify that only smaller braids and twists were allowed aside from chemically straightened hair. Dreadlocks and Afros were prohibited, and unacceptable styles were described in loaded terms like “matted and unkempt.“

An Army spokesperson said the goal was to have standards that were “necessary to maintain uniformity within a military population.” But women members of the Congressional Black Caucus wrote in a letter that the policy forced black women “to meet unreasonable norms as it relates to acceptable standards of grooming in the workplace.” After three months of review, the Army, Air Force, and Navy revised their policies.

The problem is that society devalues black hair regardless of how black people wear it. So while Jones did have a choice to cut off her locks, she didn’t have a choice in how her hairstyle was, by default, deemed unfit for the workplace. And that’s the fundamental problem that focusing on “immutable characteristics” overlooks.