Nearly a full year after issuing a revised opinion supporting an initial holding that hairstyles and other “cultural characteristics”—like dreadlocks—cannot form the basis for a Title VII claim of intentional racial discrimination, the Eleventh Circuit denied the Equal Employment Opportunity Commission’s petition for rehearing en banc in EEOC v. Catastrophe Management Solutions (CMS), 2017 WL 6015378 (11th Cir. Dec. 5, 2017).
Judge Adalberto Jordan wrote the Eleventh Circuit’s original and revised opinions in the case, and he specially concurred in the denial of rehearing en banc. Doubling down on the rationale of those earlier opinions, Judge Jordan explained that although “mutable” characteristics and stereotypes may be “legally relevant” to a claim of intentional discrimination, “a plaintiff must still ground her disparate-treatment claim on one of the protected Title VII categories, which [precedent] tells us are immutable.” 2017 WL 6015378, at *2. The EEOC had not pursued “a disparate-impact claim, which considers whether one group of people is disproportionately affected by a facially-neutral policy.” Id. at *4. And if “the future of Title VII” is to “reduce the concept of race . . . to little more than subjective notions of cultural appropriation,” he wrote, “Congress is the proper entity through which to effect such significant change.” Id. at *5.
Judge Beverly Martin dissented. In an opinion joined by Judges Robin Rosenbaum and Jill Pryor, Judge Martin wrote that the case concerned a “false racial stereotype” about “the natural texture of black hair.” 2017 WL 6015378, at *5. She also argued that “an immutable-trait requirement has no place in the race-discrimination context” because the “supposed distinction between an ‘immutable’ racial trait and a ‘mutable’ one is illusory.” Id. at *9, *10. Instead, she reasoned, “[w]hat matters is whether that trait is linked, by stereotype, to a protected category,” and a “ban on ‘all’ applicants with dreadlocks is about as race-neutral as a ban on ‘all’ applicants with dark-colored skin.” Id. at *11, *14.
The latest chapter in the CMS case is significant not only because it involved, as Judge Martin put it, a “debate between two appeals court judges, neither of [them] African American, about what is an immutable characteristic of African American hair.” 2017 WL 6015378, at *11. The case also revealed a split on anti-discrimination law among four of the five judges appointed to the Eleventh Circuit by President Barack Obama. (The fifth Obama appointee, Judge Julie Carnes, did not publicly take a side, but she presumably voted with Judge Jordan and the majority to deny the petition.)
Posted by Lee Peifer.