An Environmental Assessment of Amending Title VI and Title VII of the Civil Rights Act of 1964 to Protect Black Hairstyles in Educational ...
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An Environmental Assessment of
Amending Title VI and Title VII of the Civil Rights Act of 1964 to
Protect Black Hairstyles in Educational Institutions and the Workplace
I. Background
Racism against people of color is a persistent form of discrimination across the nation.
Whether explicit or implicit, individual or structural, it permeates our society through stereotypes
and bias, conscious or unconscious. This bias is one predicated on characteristics and cultural
practices associated with people of color. More specifically, the aftereffects of such deeply
rooted biases and racism constrain the rights of Black citizens to freely wear their natural
untreated hair in styles adopted to protect the wide range of hair textures common to people of
African descent.
For example, on December 19, 2018, a predominantly White crowd in a Buena, New
Jersey high school gymnasium watched as a White referee demanded a Black 16-year-old varsity
wrestler cut his dreadlocks (“locks”) or forfeit the match.1 Coerced by the referee and failed by
the adult onlookers, Andrew Johnson’s locks were cut. Despite winning the match that night,
video footage, viewed over one million times via social media, demonstrates that Mr. Johnson
lost something much more valuable than his win that night could have replaced; he was denied
the freedom to compete while wearing one of several protective hairstyles essential to his hair’s
health and growth.
Unfortunately, Mr. Johnson’s dilemma extends far beyond the high school gymnasium.
Black hair is more fragile and susceptible to breakage than the White population, 2 and hair
damage and/or loss is exacerbated by the consistent use of harmful styling practices like
chemical relaxers and heat straightening. 3 Thus, braids, locks, and twists (collectively
“Protective Hairstyles”) 4 are necessary for healthy Black hair maintenance.5 As many Black
people will attest, the struggle to maintain a “socially acceptable image” while protecting the
1
Laurel Wamsey, Adults Come Under Scrutiny After HS Wrestler Told To Cut His Dreadlocks Or Forfeit,
NATIONAL PUBLIC RADIO (DECEMBER 27, 2018) (https://www.npr.org/2018/12/27/680470933/after-h-s-wrestler-
told-to-cut-his-dreadlocks-or-forfeit-adults-come-under-scrut).
2
AMERICAN ACADEMY OF DERMATOLOGY, Survey: Almost half of African-American women have experienced hair
loss, https://www.aad.org/media/news-releases/hair-loss-in-african-american-women (last accessed December 27,
2018).
3
Id.
4
See Vanessa Simpson, What’s Going on Hair?: Untangling Societal Misconceptions that Stop Braids, Twists, and
Dreads From Receiving Deserved Title VII Protection, 47 SW. L. REV. 265, 266 (2017) (referring to braids, twists
and locks as “protective hairstyles,” and stating that such hairstyles are necessary for the health and maintenance of
Black hair).
5
Id. at 266.health and growth of their hair remains a challenging aspect of their educational and/or
occupational experience. More often than not, Black people choose to conform to the “socially
acceptable image” at the expense of healthy hair.
In an effort to advance the acceptance of Protective Hairstyles within society, the CROWN
Coalition was co-founded by Dove, The National Urban League, Color Of Change, and The Western
Center on Law and Poverty to Create a Respectful and Open World for Natural Hair. This group seeks to
partner with state and federal policymakers to promote legislation that will make it illegal for
employers and public educational institutions to enforce purportedly race neutral grooming
policies that disproportionately impact people of color – Black people especially. The following
focuses on Title VI and Title VII of the Civil Rights Act (collectively referred to as
“Antidiscrimination Laws”), and will assist policymakers in persuading their colleagues that
these laws must be amended to ensure that Black people are not discriminated against because of
their Protective Hairstyles.
This guidance memorandum:
• Presents arguments and statistical support for amending current legislation to
include Protective Hairstyles;
• Addresses case law that has upheld legal enforcement of so-called neutral
grooming policies and discusses the potential elimination of untapped legal
strategies to successfully challenge these policies in the courts; and
• Proposes language amending Title VI and Title VII to provide protection for
Black citizens against hair discrimination.
II. Why Title VI and Title VII Should be Amended.
Title VI of the Civil Rights Act states in relevant part that:
• No person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance. 6
A “program or activity” is defined as:
• a college, university, or other postsecondary institution, or a public system
of higher education; 7 or
6
42 USCS § 2000d.
7
42 USCS § 2000d-4a(2)(A).
2• a local educational agency (as defined in section 8101 of the Elementary
and Secondary Education Act of 1965) [20 USCS § 7801]), system of
vocational education, or other school system;8
Likewise, Title VII of the Civil Rights Act states in relevant part that:
• It shall be an unlawful employment practice for an employer—[¶] (1) to
fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.9
As discussed more exhaustively in Section III, although Antidiscrimination Laws prohibit
discrimination because of race, they do not prohibit discrimination against Black people who
wear Protective Hairstyles. Congress should amend these laws to prohibit such discrimination
because: (A) it is the right thing to do, (B) discrimination decreases cultural diversity, which
negatively affects corporate profitability; and (C) the courts have refused to act.
A. It is the right thing to do: Hairstyles as a proxy for race.
Historically, in America, hair has been a determining factor of whether a person was
White or Black, and thus a second class citizen. Propaganda advancing the notion that White,
European characteristics are beautiful and that Black, African characteristics are not, originated
during slavery and propagated throughout the colonial era. Race, as a social construct, relied on
the most obvious and basic physical characteristics to distinguish groups who could then be
ascribed rights based on their racial classification. This meant that dark skin, kinky and curly hair
became defining characteristics of “blackness” in America and simultaneously, a badge of
inferiority.10 Conversely, pale skin, and straight hair, became the defining characteristics of
“whiteness” in America, resulting in first class citizenship.
Once slavery was abolished, Jim Crow laws and “coon” imagery pervaded popular
American culture, actively promoting the notion that those who maintained Black features (i.e. –
hair and skin tone) were in fact inferior, lazy, and incompetent.11 Necessarily, Blacks who sought
to escape such stigma did so by straightening their natural hair and bleaching or lightening their
skin to achieve upward mobility.12 Sadly, decades after Jim Crow and the subsequent enactment
8
42 USCS § 2000d-4a(2)(B).
9
42 USCS § 2000e-2(a)(1).
10
See Hudgins v. Wrights, 11 VA. 134 (1806), a slavery case in which the Court relied on a physical examination of
the women plaintiffs’ hair to determine whether they were Indian American and free or black and enslaved.
11
THE SMITHSONIAN INSTITUTION, Blackface: The Birth of An American Stereotype, https://nmaahc.si.edu/blog-
post/blackface-birth-american-stereotype.
12
See Randall Kennedy, SELLOUT: THE POLITICS OF RACIAL BETRAYAL (2009) (The fifth chapter, “Passing as
Selling Out” details the lengths to which blacks would go during and following slavery to avoid racial stigma and
discrimination).
3of state and federal Civil Rights legislation, people of color remain pressured to conform to
Eurocentric standards of appearance in their pursuit of employment and economic advancement.
The legacy of this slavery and Jim Crow era ideology persists in schools and the workplace13 –
manifesting as the perception that Black people who wear Protective Hairstyles in 2019 are
distracting, unkempt, unprofessional, unattractive, incompetent, and inferior.
The New York City Commission on Human Rights recently issued guidance stating that
the New York City Human Rights Law “protects the rights of New Yorkers to maintain natural
hair or hairstyles that are closely associated with their racial, ethnic, cultural identities.”14 Also,
the District of Columbia has implemented laws, 15 and Madison, Wisconsin 16 and Urbana,
Illinois17 have implemented municipal codes, that protect people from discrimination based on
hairstyle. Furthermore, bill SB188 is pending in California, which proposes to amend
California’s antidiscrimination statute to include a prohibition against discrimination based on
hair texture and protective hairstyles. Likewise, New Jersey Senator Sandra Cunningham is
proposing to amend New Jersey’s Law Against Discrimination to prohibit discrimination based
on hair texture and protective hairstyles. That said, Congress has the opportunity to take an
active stance to protect its Black citizens from systematic discrimination based on their
Protective Hairstyles. Indeed, enacting such amendments to Title VI and Title VII would lend
credence to the changes transpiring on state levels, and mobilize other states to do the same.
B. A lack of cultural diversity negatively affects corporate profitability.
There is no longer a debate that diversity has a positive impact on a company’s bottom
line. Studies conducted as far as back as 1991 reveal that diversity gives organizations a
competitive advantage.18 In 2009, research established that companies reporting the highest
levels of racial diversity experienced 15 times more sales revenue and those boasting greater
gender diversity experience a difference of $599.1 million in average sales revenue than those on
the lowest end of the diversity spectrum. 19 Just this past year, international management
13
See Section III(A)-(B).
14
NYC Commission on Human Rights Legal Enforcement Guidance on Race Discrimination on the Basis of Hair,
February 2019, https://www1.nyc.gov/assets/cchr/downloads/pdf/Hair-Guidance.pdf
15
DC Code § 2-1402.11.
16
City of Madison Municipal Code, 39.03 (8).
17
Urbana Illinois, Human Rights Ordinance 12-62.
18
Michelle Kim, Compilation of Diversity & Inclusion “Business Case” Research Data (March 26, 2018),
https://medium.com/awaken-blog/compilation-of-diversity-inclusion-business-case-research-data-62a471fc4a42;
See also, Scott E. Page, THE DIFFERENCE: HOW THE POWER OF DIVERSITY CREATES BETTER GROUPS, FIRMS,
SCHOOLS, AND SOCIETIES (2007) (revealing that progress and innovation depend less on lone, intelligent thinkers,
and more on diverse people working together and leveraging their individuality).
19
See Cedric Herring, Does Diversity Pay? Race, Gender, and the Business Case for Diversity, AMERICAN
SOCIOLOGICAL REVIEW (April 2009) (According to Herring’s research “Race discrimination lawsuits increase
access to managerial jobs for African Americans, according to research from sociologist Sheryl Skaggs of the
University of Texas at Dallas. Skaggs examined data on the supermarket industry from 1983 to 1998 and found that
African Americans were more likely to enter management in the year following a lawsuit filing against a particular
supermarket. Importantly, the initial increase in African American managers resulting from a lawsuit filing was
shown to produce long-term benefits by bringing representation up to the industry average. Legal pressures from
4consulting firm McKinsey and Company released findings positively linking diversity to
company financial performance. 20 Needless to say, diversity is great for business. 21 By
discriminating against Black employees that wear Protective Hairstyles, corporations likely
forfeit significant amounts of revenue thereby minimizing the amount of money the federal
government may collect in taxes.
C. The courts get it wrong.
Nationwide, people of color have brought lawsuits claiming that they have been denied
equal access to public education or employment due to their choice of hairstyle. These cases
have been largely unsuccessful in part due to a judiciary ignorant of the unique structure of a
Black person’s hair and an unwillingness to apply discrimination laws to hairstyles.22 In the
absence of adequate recourse through the judicial system, Black people often must succumb to
social and economic pressure in order to preserve their careers and provide for their families.23
Therefore, legislation is necessary in order to force the courts to abandon its current thinking on
discrimination and hairstyle, and more expansively enforce the discrimination laws enacted by
the legislature.
III. Legal Landscape
A. Title VI
There appear to be no reported federal cases involving student hair discrimination under
Title VI (or any other theory), as most student complaints alleging hair discrimination are
pursued before the school board or state department of education. Such state records are not
readily obtainable.
Although no federal decisions exist, stories permeate the media with regard to hair
discrimination in schools. Perhaps one of the most highlighted stories concerns Deanna and Mia
Cook (the “Cook twins”) at Mystic Valley Charter School in Boston, Massachusetts. The Cook
twins, who were 15 years old, were given detentions (and faced possible suspension) because
they wore their hair braided, which was prohibited by the Mystic Valley Regional Charter
School dress code.24 The American Civil Liberties Union (“ACLU”) filed a complaint on the
Cook twins’ behalf with the Massachusetts Department of Education, and alleged violation of
federal courts were also important. When circuit courts were made up predominantly of white males, they were less
likely to create a legal climate signaling intolerance of workplace racial discrimination.”).
20
Kim, supra note 18.
21
Id.
22
See Section III(a).
23
Id. (Relevant case law presents key examples of black women’s experience avoiding adverse employment action
only by changing their hair to meet employer prescribed standards of appearance expressly excluding Protective
Hairstyles).
24
https://www.cbsnews.com/news/two-black-charter-school-students-punished-for-braided-hair-extensions/ (last
accessed June 4, 2019).
5state and federal civil rights laws.25 As a result of the complaint, the Massachusetts Attorney
General launched an investigation, and became “concerned that [the] . . . [school’s] policy
violates state and federal law, on its face and/or as applied, by subjecting students of color,
especially black students, to differential treatment and thus denying them the same advantages
and privileges of public education afforded to other student.”26 The Attorney General specifically
referenced the school’s noncompliance with Title VI.27 Id. Ultimately, the Attorney General
required the school to suspend its dress code policy.28
While this is a rare example of a positive outcome, most stories highlighted in the media
do no end in the same way. In recent news, a first grader was banned from school on his first day
for wearing locks29; a student was sent home for wearing an “unnatural” hairstyle30; and as
previously discussed, a young man was forced to cut his locks in order to participate in a
wrestling match. 31 Thus, national legislation is necessary to protect students against
discrimination due to hairstyle.
B. Title VII
It is documented that “banning a natural hairstyle would implicate the policies
underlying the prohibition of discrimination on the basis of immutable characteristics.” 32
Ironically, courts have taken the puzzling leap to conclude that Protective Hairstyles are not
“natural” and thus do not merit the same antidiscrimination protection as afros.
For example, in Rogers v. Am. Airlines, Inc.,33 American Airlines implemented a policy
prohibiting certain departments from wearing all-braided hairstyles. As a result of this policy,
Renee Rogers, a Black female employee, was forced to wear her hair in a bun with a synthetic
hairpiece. Ms. Rogers filed a disparate treatment claim for racial discrimination under Title VII,
among other claims, arguing that corn rows “have been and continues to be part of the cultural
and historical essence of Black American women,” and that the denial of the right to wear that
25
https://www.aclum.org/sites/default/files/wp-content/uploads/2017/05/ocr-redacted-amended-complaint.pdf (last
accessed June 4, 2019).
26
https://d279m997dpfwgl.cloudfront.net/wp/2017/05/Ltr.-to-MVRCS-5-19-17.pdf (last accessed June 3, 2019).
27
Id.
28
Id.
29
https://www.washingtonpost.com/news/education/wp/2018/08/15/a-little-boy-with-dreadlocks-enrolled-at-a-
fundamentalist-christian-school-it-didnt-go-well/?utm_term=.9d794247f883 (last accessed June 3, 2019)
30
https://wgno.com/2018/08/20/christ-the-king-student-sent-home-over-unnatural-hairstyle/ (last accessed June 3,
2019).
31
https://www.nbcnews.com/news/nbcblk/when-hair-breaks-rules-some-black-children-are-getting-trouble-n973346
last accessed June 3, 2019).
32
Rogers v. Am. Airlines, Inc., 527 F. Supp. 229, 232 (S.D.N.Y. 1981); see also EEOC Compliance Manual, 15-VII
EQUAL OPPORTUNITY FOR JOB SUCCESS, § B(5), https://www.eeoc.gov/policy/docs/race-
color.html#N_154_ (Title VII “prohibits employers from preventing African American women from wearing their
hair in a natural, unpermed ‘afro’ style.”).
33
527 F. Supp. 229 (S.D.N.Y. 1981).
6style is tantamount to racial discrimination.34 The court dismissed the claim opining that corn
rows “are not the product of natural hair growth, but of artifice. An all-braided hairstyle is an
‘easily changed characteristic,’ and, even if socio-culturally associated with a particular race or
nationality, is not an impermissible basis for distinctions in the application of employment
practices by an employer.”35
Likewise, in Pitts v. Wild Adventures, Inc., 36 Wild Adventures, a theme park,
implemented a grooming policy that prohibited “dreadlocks, cornrows, beads, and shells” that
are not “covered by a hat/visor.”37 Patricia Pitts, a Black female employee, wore her hair in
braids and twists. Her supervisor suggested that she alter her braids to a “pretty style.”38 After
Ms. Pitts refused to comply with the grooming policy she was terminated for other alleged
infractions. Ms. Pitts brought a disparate treatment claim for racial discrimination under Section
1981 arguing that the grooming policy is racially discriminatory because it prohibits “Afro-
centric hairstyles” such as dreadlocks and cornrows. 39 Similar to Rogers, the court held
that dreadlocks and cornrows are not immutable characteristics, and an employer policy
prohibiting these hairstyles implicates neither a fundamental right nor the protections of Section
1981.40
In Eatman v. United Parcel Service,41 UPS implemented a grooming policy requiring
company drivers to wear hats to cover “unconventional” hairstyles. Charles Eatman, a UPS
employee, was terminated for refusing to hide his locks under a hat.42 Mr. Eatman filed a
disparate treatment claim for racial discrimination under Title VII based on UPS’ grooming
policy. Mr. Eatman argued that the company’s policy was discriminatory because it singled out
African Americans based on their locked hair, a characteristic that is unique to African
Americans.43 The court disagreed and dismissed Mr. Eatman’s complaint holding that “locked
hair” is not unique to African Americans and that Title VII does not prohibit discrimination on
the basis of locked hair. Therefore, even if UPS’ policy explicitly discriminated against locked
hair, it would not violate Title VII on its face.44
Similarly, in Campbell v. State Dep't of Corr.,45 Alabama’s Department of Corrections’
grooming policy allowed only male employees to wear their hair in dreadlocks. 46 Andrea
34
Id. at 232.
35
Id.
36
Civil Action No. 7:06-CV-62-HL, 2008 U.S. Dist. LEXIS 34119 (M.D. Ga. Apr. 25, 2008).
37
Id. at 3.
38
Id.
39
Id. at 18-19.
40
Id.
41
194 F. Supp. 2d 256 (S.D.N.Y. 2002).
42
Id. at 260.
43
Id. at 262.
44
Id.
45
Civil Action No. 2:13-CV-00106-RDP, 2013 U.S. Dist. LEXIS 70923, 2013 WL 2248086, at *2 (N.D. Ala. May
20, 2013).
46
Id. at 1.
7Campbell filed a complaint alleging gender and racial discrimination under Title VII.47 Although
the court dismissed Campbell’s gender discrimination claim, it allowed Campbell to amend the
complaint to state a claim for racial discrimination.48 However, the court acknowledged that
grooming policies are outside the scope of federal employment discrimination because “they do
not discriminate on the basis of immutable characteristics,” and a dreadlock hairstyle is not
immutable.49
Additionally, in Cooper v. American Airlines,50 the American Airlines grooming policy
prohibited “hairstyles consisting completely of braids.” 51 Barbara Cooper wore her hair in
multiple small braids. 52 She was informed that the braids violated the airline’s grooming
policy.53 Though Cooper removed the braids to comply with the policy, she brought a claim for
racial discrimination under a theory of disparate impact and treatment.54 The Fourth Circuit
Court of Appeals affirmed the district court’s dismissal of Cooper’s complaint for failure to state
a claim.55
And in McBride v. Lawstaf, Inc.,56 Corrine McBride alleged she was prohibited from
referring qualified applicants with “braided hairstyles” for employment positions.57 McBride
contested the policy and was terminated.58 McBride’s complaint was dismissed and the Georgia
Northern District Court noted “an employer's grooming policy prohibiting a braided hairstyle is
not “an unlawful employment practice.”59
Finally, in perhaps the most recent and widely-reported60 case – EEOC v. Catastrophe
Management Solutions 61 – Catastrophe Management Solutions (“CMS”) rescinded Chastity
Jones’ job offer because she wore her hair in locks. The EEOC sued CMS for racial
discrimination under Title VII on Ms. Jones’ behalf and argued that the “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
47
Id.
48
Id. at 6 -9.
49
Id. at 5.
50
Civil Action No. No. 97-1901, 1998 U.S. App. LEXIS 10426 (4th Cir. May 26, 1998).
51
Id. at 2.
52
Id.
53
Id.
54
Id.
55
Id.
56
Civil Action No. A.1:96-CV-0196C, 1996 U.S. Dist. LEXIS 16190 (N.D. Ga. Sept. 19, 1996).
57
Id. at 4.
58
Id.
59
Id. at 5.
60
A. B. Wilkinson, No Dreadlocks Allowed (Nov. 3, 2016),
https://www.theatlantic.com/business/archive/2016/11/no-dreadlocks-allowed/506270/; Noel Gutierrez-Morfin, U.S.
Court Rules Dreadlock Ban During Hiring Process is Legal (Sept. 21, 2016),
https://www.nbcnews.com/news/nbcblk/u-s-court-rules-dreadlock-ban-during-hiring-process-legal-n652211.
61
852 F.3d 1018 (11th Cir. 2016).
8descent.”62 However, the Eleventh Circuit affirmed the district court’s dismissal of the complaint
and, like the other cases, held that dreadlocks are not an immutable characteristic of Black
persons. Therefore, it found that 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.63
The obvious common thread between each of these cases is the courts’ refusal to apply
antidiscrimination protections to the aggrieved plaintiffs because Protective Hairstyles are
considered a “mutable choice.” But as discussed below, the courts are misinformed. Black
hairstyles are not a “mutable choice,” but rather serve to protect the uniquely fragile texture of
Black hair, a direct result of its biological and immutable nature.
C. Disparate Impact of “Neutral” Grooming Policies
It appears that most cases alleging discrimination against employees wearing Protective
Hairstyles (including the unsuccessful cases mentioned above) were based on the theory of
disparate treatment – i.e. that the particular plaintiff was treated differently than other similarly
situated employees; however, disparate treatment claims require proof of intent to discriminate
by the employer which is difficult to prove. In contrast, disparate impact claims require proof
that an employment policy, although neutral on its face, statistically has a greater negative
impact on the group to which plaintiff belongs when applied. In addition, plaintiffs need to show
that the employment policy is unrelated to measuring job capability.
In the context of Protective Hairstyle discrimination, a case based on the disparate impact
theory may be easier to prove.64 In fact, cases challenging grooming policies using the disparate
impact theory have been successful in the past. 65 In EEOC v. Trailways, Inc.,66 the EEOC, on
behalf of Floyd Henry, sued Trailways Inc. asserting that the employer’s “no beard” policy was
discriminatory because it had a disparate impact on Black men. Mr. Henry suffered from
pseudofolliculitis barbae (“PFB”).67 PFB is a skin disorder unique to Black men which results in
ingrown hairs when cleanly shaven.68 Because the EEOC pursued a discriminatory impact
theory, as opposed to a discriminatory treatment theory, proof of a discriminatory motive or
intent on the part of defendant was irrelevant, and the test was whether the challenged practice
62
Id. at 1023.
63
Id. at 1030.
64
Simpson, supra note 4, at 266-67. Compare Lewis v. Univ. of Pa., Civil Action No. 16-5874 2018 U.S. Dist.
LEXIS 13423 (E.D. Penn. Jan. 29, 2018) (granting a motion for summary judgment on Plaintiff’s disparate impact
claims for lack of statistical evidence showing the policy requiring males be “clean shaven” had a disparate impact
based on race.).
65
See also Richardson v. Quik Trip Corp., 591 F. Supp. 1151 (S.D. Iowa 1984)(no beard policy has discriminatory
impact on black males and violates Title VII under disparate impact theory) and Bradley v. Pizzaco of Neb., Inc.,
939 F.2d 610, 613 (8th Cir. 1991)(strictly-enforced no-beard policy has a discriminatory impact on black males).
66
530 F. Supp. 54 (D. Colo. 1981).
67
Id., at 56.
68
Id.
9had a discriminatory effect. Moreover, the plaintiff was able to present statistical evidence to
support its assertion that the PFB had a disparate impact on Black males. The court ultimately
held “[t]he impact of the “no-beard” policy clearly falls more heavily on blacks than it does on
whites, and I think that the principles of Griggs v. Duke Power Co. (1971) 401 U.S. 424, 91 S.
Ct. 849, 28 L. Ed. 2d 158, require that actionable Title VII impact be found.”69
By comparison, there is statistical evidence that almost half of Black women suffer from
hair loss caused by centrifugal cicatricial alopecia (“CCCA”) and traction alopecia (“TA”).70
Black hair is more fragile and susceptible to breakage than the White population, and hair loss is
exacerbated by damaging styling practices like weaves and chemical relaxers.71 Thus, Protective
Hairstyles are the primary way a Black person can safely wear their hair to mitigate against hair
loss.72 Rarely does one’s hairstyle have a direct correlation to job capability or performance.
Given these statistics and the absence of a direct correlation between hair style and most
occupations it appears the elements for a successful disparate impact claim based on Protective
Hairstyles could be made.
Still, the potential success of a disparate impact claim does not obviate the need for the
legislature to amend its Antidiscrimination Laws. Currently, the Trump Administration is
considering diluting or removing the disparate impact theory as a method of recovery under
federal discrimination statutes.73 This change, if effectuated, may prohibit recovery under the
disparate impact theory altogether. Thus, the need for Congress to amend its Antidiscrimination
Laws is even more pressing.
IV. Solution
If Congress does not amend its Antidiscrimination Laws, it is leaving to chance whether
federal courts will construe them to allow discrimination against individuals who wear Protective
Hairstyles. As outlined above, some federal courts have already construed federal law –
particularly Title VII – to permit grooming policies that disparately impact people of color; thus,
it is conceivable that other federal courts will follow suit. For the reasons stated above, Congress
should amend Title VI and Title VII so that Protective Hairstyles are subsumed within the term
“Race.”
Specifically, the following language should be inserted in 42 U.S.C. § 2000d-8 (which
section does not currently exist, but would apply to Title VI)74, and 42 U.S.C. § 2000e (which
applies to Title VII):
69
Id. at 59.
70
Kimika Hudson, The Missing Education on Black Hair, (Dec. 6, 2017), https://www.huffingtonpost.com/kimika-
hudson/the-missing-education-on-black-hair_b_5540407.html (last accessed December 27, 2018).
71
Id.
72
Simpson, supra note 4, at 266.
73
https://www.washingtonpost.com/local/education/trump-administration-considers-rollback-of-anti-discrimination-
rules/2019/01/02/f96347ea-046d-11e9-b5df-5d3874f1ac36_story.html?utm_term=.a717e1c5103e
74
42 U.S.C. § 2000d-8 should be titled “Race, as used herein.”
10• The term “Race” is inclusive of traits historically associated with race,
including, but not limited to, hair texture, hair type, and protective
hairstyles. Protective Hairstyles include, but is not limited to, such
hairstyles as braids, locks, and twists.
Including these definitions in the Antidiscrimination Laws will make it illegal to discriminate
based upon Protective Hairstyles.
V. Conclusion
In conclusion, Congress should seize the opportunity to become a frontrunner in the
movement to protect Black citizens from systematic discrimination because of their Protective
Hairstyles.
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