EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CATASTROPHE MANAGEMENT SOLUTIONS, Defendant-Appellee.
No. 14-13482
United States Court of Appeals, Eleventh Circuit.
Date Filed: 12/05/2017
1273
Paula Rene Bruner, Jeremy D. Horowitz, Equal Employment Opportunity Commission, Office of General Counsel-Appellate Services, Washington, DC, Julie Bean, Marsha Lynn Rucker, C. Emanuel Smith, EEOC, Birmingham, AL, for Plaintiff-Appellant. David James Middlebrooks, Whitney Ryan Brown, Lehr Middlebrooks & Vreeland, PC, Birmingham, AL, Thomas M. Johnson, Jr., Eugene Scalia, Helgi C. Walker, Gibson Dunn & Crutcher, LLP, Washington, DC, for Defendant-Appellee. Joshua P. Thompson, Pacific Legal Foundation, Sacramento, CA, for Amicus Curiae Pacific Legal Foundation. William S. Consovoy, Consovoy McCarthy, PLLC, Arlington, VA, for Amicus Curiae Chamber Of Commerce of the United States of America. Rachel Kleinman, Christina Swarns, NAACP Legal Defense & Educational Fund, Inc., New York, NY, for Amicus Curiae NAACP Legal Defense.
In sum,
III. Conclusion
The district court properly found Kendall’s convictions under
We accordingly AFFIRM.
Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.*
BY THE COURT:
A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court
JORDAN, Circuit Judge, concurring in the denial of rehearing en banc:
Catastrophe Management Solutions does not hire anyone, black or white, who uses an “excessive hairstyle[ ],” a category that includes dreadlocks. So when Chastity Jones, a black woman, refused to remove her dreadlocks, CMS rescinded her employment offer. The EEOC sued on her behalf, claiming 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.” D.E. 21-1 at ¶ 28 (EEOC’s proposed amended complaint). The EEOC’s lawsuit, in other words, sought to expand the definition of “race”—a term undefined in Title VII—to include anything purportedly associated with the culture of a protected group.
The district court dismissed the case, and a panel of this court affirmed because the EEOC’s complaint did not allege—as required by our Title VII disparate-treatment precedent—that dreadlocks are an immutable characteristic of black individuals. See Equal Employment Opportunity Comm’n v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1021, 1028-30 (11th Cir. 2016) (applying Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975) (en banc), and Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980)). A majority of this court has declined to rehear the case en banc, prompting Judge Martin to dissent from the denial of rehearing with a thoughtful critique of the panel opinion.
But as insightful as Judge Martin’s dissent is, and as difficult as the issues presented are, dismissing the complaint was the correct legal call. Under our precedent, banning dreadlocks in the workplace under a race-neutral grooming policy—without more—does not constitute intentional race-based discrimination. First, dreadlocks are not, according to the EEOC’s proposed amended complaint, an immutable characteristic of black individuals. Second, the allegations in the complaint do not lend themselves to a reasonable inference that, in applying its grooming policy to dreadlocks, CMS discriminated against Ms. Jones because of her race.
* * * * *
To start, I think Judge Martin overstates what the Supreme Court held in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). She says that a majority of the Court in Price Waterhouse allowed the plaintiff to claim disparate treatment for behavior she could have changed. And that, she contends, cannot be squared with Willingham and its immutability requirement. Her argument draws exclusively from the four-justice plurality opinion, which she says constitutes the holding of the case because Justice White and Justice O’Connor, each of whom concurred in the judgment, did not dispute the plurality’s rationale. Assuming that is the correct reading of the concurring opinions, I believe Price Waterhouse and our decision in Willingham can be reconciled because the Price Waterhouse plurality did not hold that Title VII protects mutable characteristics.
In Price Waterhouse, Ann Hopkins, a woman, sued for sex discrimination when she was denied partnership at a well-known accounting firm. Although there was evidence that the firm’s partners had disparaged Ms. Hopkins’ demeanor as in
Put differently, the Price Waterhouse plurality made the unremarkable observation that, when an employer makes a decision based on a mutable characteristic (demeanor) that is linked by stereotype (how women should behave) to one of Title VII’s protected categories (a person’s sex), the decision may be impermissibly based on the protected category, so the attack on the mutable characteristic is legally relevant to the disparate-treatment claim. But a plaintiff must still ground her disparate-treatment claim on one of the protected Title VII categories, which Willingham tells us are immutable.
In my view, Price Waterhouse did not elevate mutable features, independent of a protected category, to protected status. See Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1111 (9th Cir. 2006) (en banc) (interpreting Price Waterhouse as a mixed-motive discrimination case in which the Supreme Court clarified that stereotypes can serve as evidence that an employer unlawfully considered sex in making an employment decision); Chapman v. AI Transp., 229 F.3d 1012, 1036 (11th Cir. 2000) (en banc) (distinguishing between a mutable trait and an “impermissible consideration”—that is, a protected category). And because it did not, merely prohibiting a mutable characteristic does not, as Judge Martin and the EEOC argue, constitute discrimination.
* * * * *
Judge Martin takes aim at a purported internal consistency in the panel opinion, arguing that, if immutability is the rule, the panel provided two different, conflicting definitions of the term. The first is that an immutable trait is something “beyond the victim’s power to alter,” a phrase the panel quoted from the binding Former Fifth Circuit decision in Garcia. Judge Martin maintains that this definition is inconsistent with the panel’s reliance on Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164 (7th Cir. 1976) (en banc), which recognized a race-discrimination claim for a black plaintiff who alleged she was denied promotion for wearing an afro, because both afros and dreadlocks can be altered. Given this supposed inconsistency, Judge Martin concludes that the panel actually defined immutable as “naturally occurring,” and argues that the complaint sufficiently alleged that dreadlocks occur naturally in black individuals’ hair.
The panel opinion isn’t as confusing as Judge Martin makes it seem. The two definitions provided are not at odds because the panel used the phrase “beyond
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
878 (4th ed. 2009) (defining “immutable” as “[n]ot subject or susceptible to change”). The opinion, in so many words, made this abundantly clear. See, e.g., Catastrophe Mgmt., 852 F.3d at 1026-27. This is also what courts after Willingham, have understood immutability to mean. See, e.g., Earwood v. Cont’l Se. Lines, Inc., 539 F.2d 1349, 1351 (4th Cir. 1976) (following Willingham and explaining that “discrimination based on ... immutable sex characteristics ... violate[s] [Title VII] because they present obstacles to employment of one sex that cannot be overcome”) (emphasis added). Indeed, when the Former Fifth Circuit in Garcia employed the phrase, it gave as examples a person’s “place of birth” and “the place of birth of his forebears.” See Garcia, 618 F.2d at 269.Judge Martin’s critique of the panel opinion conflates altering a characteristic with masking it. Those two concepts are distinct; if a trait can be masked momentarily but will eventually revert to its natural state, it is immutable because it is “beyond the [person’s] power to alter.”
According to Judge Martin, the panel also differentiated between dreadlocks and afros based on “its own notion that the only natural black hair is an [a]fro.” The panel, however, accepted that an afro was the natural state of Ms. Jenkins’ hair because Ms. Jenkins said it was. Ms. Jenkins had alleged that, after years of manipulating her hair into different styles, she suffered racial discrimination only when she allowed her hair to revert to its “natural ... style”—an afro. See Jenkins, 538 F.2d at 167 (emphasis added).
Here the EEOC presented a completely different theory of discrimination in its proposed amended complaint. It asserted that dreadlocks are protected under Title VII because they are culturally and physiologically associated with individuals of African descent. Even if this somehow does not constitute abandonment of the argument that dreadlocks are an immutable characteristic of black individuals, the complaint failed to assert that dreadlocks are a black individual’s hair in its natural, unmediated state.
* * * * *
Judge Martin cites to portions of the complaint she believes alleged that dreadlocks occur naturally. But when read in context, the allegations Judge Martin cites to do not support her position. The complaint’s thesis is that dreadlocks are a hairstyle that is suitable for black individuals’ hair, and the snippets she selects are not to the contrary. See, e.g., D.E. 21-1 at ¶ 19, 26, 28.
For example, one of the allegations Judge Martin cites is that “[d]readlocks are formed in a [b]lack person’s hair naturally, without any manipulation.” Id. at ¶ 19. This phrase, however, comes after the introductory sentence of that paragraph, which states that “[d]readlocks [are] a manner of wearing hair that is common for [b]lack people and suitable for [b]lack hair texture,” and is followed by an acknowledgment that dreadlocks can be formed “by the manual manipulation of hair into larger coils of hair.” Id. Indeed, the complaint’s references to the “natural texture” of black individuals’ hair, id. at ¶ 27, which “naturally grows in very tight coarse coils,” id. at ¶ 22, are assertions embedded in a section of the complaint dedicated to explaining the uniqueness of black hair and the challenges black individuals face when it comes to their hair styling choices. See id. at ¶ 22-27. That section of the complaint reiterates that “dreadlocks are a method of hair styling suitable
In sum, the allegations cited by Judge Martin do not support the claim that dreadlocks are naturally occurring. To the contrary, the complaint faithfully reflects the overarching theme of the EEOC’s Title VII theory—that dreadlocks are a protected cultural choice—and it was on that theory that the panel resolved the case.
* * * * *
Judge Martin contends that, even if banning dreadlocks isn’t per se race discrimination, the complaint plausibly stated that CMS used dreadlocks as a pretext for not hiring Ms. Jones on account of her race. Analogizing to Price Waterhouse, she argues that a ban on dreadlocks is a proxy for not employing black individuals because the two, according to the complaint, are associated by a stereotype that black individuals’ hair is unprofessional.
This case, however, is very different from Price Waterhouse. In Price Waterhouse, Ms. Hopkins plausibly stated a claim of intentional sex discrimination because the firm’s partners had, on multiple occasions, made it clear that their primary grievance—what they described as Ms. Hopkins’ “over[ ] aggressive[ness]” and “macho” demeanor—was that a woman was displaying traits stereotypically associated with men. See Price Waterhouse, 490 U.S. at 235, 109 S.Ct. 1775. They were not shy about it either; one partner even admitted that the other partners only objected to Ms. Hopkins’ prodigious swearing “because it’s a lady using foul language.” Id.
CMS’ prohibition against dreadlocks, by contrast, is based on a race-neutral policy that applies with equal force to men and women (and hairstyles) of all races. So, unlike the situation in Price Waterhouse, the policy against the allegedly stereotypical characteristic (dreadlocks) is unmoored from the protected category (Ms. Jones’ race). See Brown v. D.C. Transit Sys., Inc., 523 F.2d 725, 728 (D.C. Cir. 1975) (holding that, unless there is evidence of pretext or bad faith, “[t]he wearing of a uniform, the type of uniform, the requirement of hirsute conformity applicable to whites and blacks alike, are simply non-discriminatory conditions of employment”) (emphasis added). See also Jespersen, 444 F.3d at 1111 (holding that gender-based grooming policy did not constitute “[i]mpermissible sex stereotyping” in part because comparable grooming requirements applied equally to all employees, “male and female”). And although the complaint alleged that black individuals wear dreadlocks more often than persons of other racial groups, that assertion makes more sense in the context of a disparate-impact claim, which considers whether one group of people is disproportionately affected by a facially-neutral policy. But that theory of Title VII liability is not at issue here because the EEOC declined to pursue it.
* * * * *
The EEOC brought this case on behalf of Ms. Jones in the hopes that we would do what neither it (through its rulemaking authority), nor Congress, nor any other court has done: update the meaning of race in Title VII to reflect its increasingly nebulous (and disputed) boundaries. But there is no legal or factual agreement on where those boundaries lie, and Judge Martin and the EEOC do not pretend otherwise. Debates rage in the academy (as well as in society) over whether race is
BERT ASHE, TWISTED: MY DREADLOCK CHRONICLES
36 (2015) (“The first written evidence of dreadlocks is in the Vedic scriptures, which are of Indian origin[,] ... [and] were developed and written about 2,500 years ago[.]”).As far as I can tell, the position advocated by the EEOC could reduce the concept of race in Title VII to little more than subjective notions of cultural appropriation. See Initial Br. of EEOC at 35-37 (arguing that Title VII shields symbols of racial pride, as defined by the user). Perhaps this view reflects the future of Title VII, but if so, Congress is the proper entity through which to effect such significant change.
For the time being, we are left with Supreme Court precedent explaining that discrimination based on stereotypes is circumstantial evidence of discrimination on the basis of a protected category, and with circuit precedent telling us that protected categories and characteristics must be immutable. Those two lines of authority, in my opinion, are not mutually exclusive.
MARTIN, Circuit Judge, with whom ROSENBAUM and JILL PRYOR, Circuit Judges join, dissenting from the denial of rehearing en banc:
Chastity Jones, a black woman, applied for a position at Catastrophe Management Solutions (“CMS”). She got the job. But after she was hired, the human resources manager—who is white—told Ms. Jones the company had to rescind its job offer because she wore her hair in dreadlocks. The manager told Ms. Jones the problem with dreadlocks is “they tend to get messy,” but at the same time recognized that Ms. Jones’s own dreadlocks were not messy. Even so, CMS took away Ms. Jones’s job offer because her hair violated the company’s blanket ban on dreadlocks.
The Equal Employment Opportunity Commission (“EEOC”) filed suit against CMS on behalf of Ms. Jones. The complaint alleged that CMS discriminated against Ms. Jones on the basis of her race, in violation of
Even with these clear allegations of racial discrimination, the District Court dismissed this action based on the pleadings alone. See Equal Emp’t Opportunity Comm’n v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1021 (11th Cir. 2016). This means, of course, that the courthouse doors were closed to Ms. Jones without either she or CMS having any opportunity for factual exploration or development of her claims. On this limited record, then, a panel of this Court affirmed. And now, despite the startling nature of the precedent created by the panel opinion, a majority of this Court has voted not to rehear
The panel held that the complaint failed to state a claim because Title VII prohibits only discrimination based on “immutable traits” and dreadlocks are not “an immutable characteristic of black persons.” Id. at 1021. The panel said our decision in Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975) (en banc),1 dictates this conclusion. See Catastrophe Mgmt., 852 F.3d at 1028-30. I cannot agree. By resting its decision on Willingham’s mutable/immutable distinction, the panel revives—in fact, expands—a doctrine the Supreme Court invalidated more than twenty-five years ago in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Even if Willingham’s immutable-trait requirement survived Price Waterhouse, the allegations the EEOC made here on behalf of Ms. Jones are sufficient to satisfy that requirement and state a
I. BACKGROUND
In May 2010, Ms. Jones applied to be a customer service representative at CMS, a claims-processing company in Mobile, Alabama. Catastrophe Mgmt., 852 F.3d at 1021. The position did not involve any in-person contact with customers. It called for speaking with customers only over the phone, from a large call center. Id. Ms. Jones was selected for an in-person interview. Id. She arrived at CMS a few days later dressed in a business suit. Id. She wore her hair in short dreadlocks. Id.
First, Ms. Jones interviewed one-on-one with a CMS “trainer.” The trainer made no mention of her hair, nor did any other CMS employee who saw Ms. Jones. After her interview, CMS’s human resources manager Jeannie Wilson, a white woman, informed Ms. Jones and a number of other applicants they had been hired. Id. Ms. Wilson explained that they would need to complete scheduled lab tests and paperwork before beginning employment. Id. Ms. Wilson offered to meet privately with anyone who had a conflict with the time set for the tests. Id.
After the group meeting, Ms. Jones met privately with Ms. Wilson to talk about a scheduling conflict and request a different date for her lab tests. Id. Ms. Wilson told Ms. Jones she could come back to complete the lab work at another time. Id.
Ms. Jones was about to leave when Ms. Wilson asked her whether her hair was in “dreadlocks.” Id. Ms. Jones said yes, and Ms. Wilson replied that CMS could not hire her with dreadlocks. Id. When Ms. Jones asked why her dreadlocks would be a problem, Ms. Wilson said: “[T]hey tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” Id. Ms. Jones then told Ms. Wilson she would not cut her hair off. Id. at 1022. Ms. Wilson responded that CMS could no longer hire her. Id.
At the time, CMS had a written policy that said: “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[.]” Id. It had no formal, written policy about dreadlocks.
Judge Jordan says CMS “does not hire anyone, black or white, who uses an ‘excessive hairstyle [ ],’ a category that includes
II. DISCUSSION
The panel concluded that our previous decision in Willingham required it to affirm the dismissal of Ms. Jones’s disparate treatment claim. See Catastrophe Mgmt., 852 F.3d at 1028-30. Willingham addressed an employer policy that required male employees to keep their hair shorter than shoulder length but allowed female employees to wear their hair any length. 507 F.2d at 1087-88. The employer adopted the requirement to avoid the association between “long hair on men [and] the counter-culture types.” Id. at 1087. The plaintiff was a man who had been denied a position because his hair was too long. Id. He brought a Title VII claim alleging that this policy discriminated on the basis of his sex. Id. at 1086. The former Fifth Circuit rejected his claim. It “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. Because “[h]air length is not immutable,” the Willingham court reasoned, the plaintiff had no claim. Id. at 1091-92.
The panel in Ms. Jones’s case reads Willingham to establish a general rule that
A.
Willingham’s immutable-trait requirement is no longer good law, and Ms. Jones’s panel was wrong to invoke it. The Supreme Court’s 1989 decision in Price Waterhouse made clear that
Price Waterhouse addressed sex discrimination. Ann Hopkins alleged that her employer, the accounting firm Price Waterhouse, refused to allow her to become a partner in the firm because her gender presentation defied the firm’s view of how a woman should look and act. One partner described her as “macho.” Price Waterhouse, 490 U.S. at 235, 109 S.Ct. at 1782 (plurality opinion). Another advised her to take “a course at charm school.” Id. But the “coup de grace,” to use the Supreme Court’s term, came from a partner who told Ms. Hopkins she needed to “walk more femininely, talk more femininely,
The Supreme Court held that these comments showed Price Waterhouse discriminated against Ms. Hopkins on the basis of her sex in violation of
[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.
Id. at 251, 109 S.Ct. at 1791 (quotation omitted and alteration adopted). Since this declaration from the Supreme Court, our Court has repeatedly recognized that “discrimination on the basis of gender stereotype is sex-based discrimination.” Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011); see Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1254 (11th Cir. 2017) (same); see also Equal Emp’t Opportunity Comm’n v. Boh Bros. Const. Co., 731 F.3d 444, 454 & n.4 (5th Cir. 2013) (collecting cases of the other circuits stating the same conclusion).
The lesson of Price Waterhouse is clear. An employment decision based on a stereotype associated with the employee’s protected class may be disparate treatment under
Thus, after Price Waterhouse,
When a “direct[ ] conflict” like this arises between our prior precedent and a later decision of the Supreme Court, it is our obligation to leave our precedent behind and respect the Supreme Court’s pronouncement. See United States v. White, 837 F.3d 1225, 1230-31 (11th Cir. 2016) (per curiam) (quotation omitted); see also Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997) (“To the extent of any inconsistency between our [earlier] pronouncements and the Supreme Court’s supervening ones, of course, we are required to heed those of the Supreme Court.”). By applying Willingham to dismiss Ms. Jones’s case, our Court has shirked its obligation.
B.
Beyond that, when the panel relied on Willingham’s invalid immutable-trait requirement, it did not reach the wrong result for only Ms. Jones. Sadly, it takes our entire Title VII disparate-treatment jurisprudence down a misguided path. Since Price Waterhouse, this Court had applied Willingham only one time. That was to uphold a sex-differentiated hair-length policy that was indistinguishable from the one at issue in Willingham. See Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).3 Other than Harper, this Court has completely avoided Willingham’s immutable-trait requirement. The rarity with which we have invoked the Willingham requirement after Price Waterhouse suggests that—until now—our Court understood its requirement was no
The panel decision thus resurrects what had been, for good reason, a dead letter in this circuit. And it does so in very broad terms. Instead of limiting the immutable-trait requirement to cases involving grooming policies, the opinion appears to hold that the “immutable characteristic limitation” applies to all Title VII disparate treatment claims. Catastrophe Mgmt., 852 F.3d at 1029; see, e.g., id. at 1021 (“[O]ur precedent holds that Title VII prohibits discrimination based on immutable traits ....”); id. at 1028 (“Title VII protects against discrimination based on immutable characteristics.”); id. at 1030 (“Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices.”). To the extent the panel opinion revives the immutable-trait requirement for sex discrimination claims, it directly contradicts our post-Price Waterhouse precedent recognizing sex discrimination claims based on gender nonconformity. See Evans, 850 F.3d at 1254 (“Discrimination based on failure to conform to a gender stereotype is sex-based discrimination.”); Glenn, 663 F.3d at 1316 (same). After all, the crux of every gender-nonconformity claim is that the way an employee chooses to present her gender, through any number of mutable characteristics, is protected by Title VII.
My reading of the panel opinion tells me that the panel not only resurrects this damaging immutable-trait requirement, it expands that requirement. It does so by applying the doctrine to disparate treatment claims alleging race discrimination. Before Ms. Jones’s panel opinion, this Court had never applied Willingham’s immutable-trait requirement to a race-based disparate treatment claim. Now, the panel has extended the doctrine to race claims, which pushes the invalid doctrine into a whole new category of Title VII claims. Willingham mentioned race only once. It said that “race” itself is an “immutable characteristic[ ]” and therefore protected under Title VII. 507 F.2d at 1091 (“Equal employment opportunity may be secured only when employers are barred from discriminating against employees on the basis of immutable characteristics, such as race and national origin.”). In other words, Willingham used the concept of immutability to identify race as a characteristic that is a prohibited basis for employer decisionmaking. Willingham never said anything about using immutability against a racial group to exclude certain features of racial identity from statutory protection.5
It isn’t hard to see why an immutable-trait requirement has no place in the race-discrimination context. The doctrine presumes that there are immutable, or naturally-occurring physical differences between racial groups. This, even though both the academy and the courts have long rejected the notion that racial divisions are based on biological differences. See 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, 11-20 (1994) (collecting sources and explaining that “[t]he rejection of race in science is now almost complete”). Summarizing the findings of “[m]any modern biologists and anthropologists,” the Supreme Court told us three decades ago:
Clear-cut [racial] categories do not exist. The particular traits which have generally been chosen to characterize races have been criticized as having little biological significance. It has been found that differences between individuals of the same race are often greater than the differences between the “average” individuals of different races.
Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 610 n.4, 107 S.Ct. 2022, 2026 n.4 (1987).
The supposed distinction between an “immutable” racial trait and a “mutable” one is illusory. Is the color of an employee’s hair an immutable trait? What about the shape of an employee’s nose? It seems to me that employers could use the panel’s rule to argue that any case in which the employer hasn’t overtly discriminated on the basis of skin color itself falls outside of
The panel opinion itself shows us that the notion of an “immutable” racial characteristic is fiction. In an effort to give lower courts an example of “the distinction between immutable and mutable characteristics of race,” the panel draws a bright line between dreadlocks and an Afro. Catastrophe Mgmt., 852 F.3d at 1030. The panel actually says that while dreadlocks, a “black hairstyle,” is a “mutable choice” and therefore not protected, an Afro, “black hair texture,” is an “immutable characteristic” and is therefore protected. Id. This distinction is nonsense. If an immutable trait is something that is “beyond the [plaintiff’s] power to alter,” id. at 1029 (quotation omitted), then neither dreadlocks nor Afros are immutable traits of black people. Like any hair style, both can be altered.
In fact, the very case the panel relies on for the proposition that Afros are an immutable characteristic, Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164 (7th Cir. 1976) (en banc), disproves the point. See Catastrophe Mgmt., 852 F.3d at 1030 (citing Jenkins, 538 F.2d at 168). In Jenkins, the Seventh Circuit held that a black employee’s allegation that she was denied a promotion because she wore her hair in an Afro stated a
The discriminatory animus that motivates an employer to ban dreadlocks offends the antidiscrimination principle embodied in
In order to faithfully apply
In concluding this debate between two appeals court judges, neither of us African American, about what is an immutable characteristic of African American hair, the ironies are not lost on me. Ms. Jones is not going to be impacted much by which view ultimately prevails in what Judge Jordan refers to as the “[d]ebates [that] rage in the academy (as well as in society) over whether race is biological, cultural, consensus-based, or some or none of the above.” Ms. Jones’s complaint plainly sets out facts that plausibly support her claim that CMS withdrew her job offer based on a marker of her race. As you’ve read, Judge Jordan himself recognizes that there is “no legal or factual agreement” about the relationship between a person’s hair style and her race. That being the case, Ms. Jones had every reason to come into federal court, seeking to have a jury instructed on the law that governs this dispute, and then decide these facts about
C.
In the ways I have set out, the panel went astray when it invoked Willingham’s immutable-trait requirement to dismiss the EEOC’s complaint. I will now review how the EEOC’s allegations should have been analyzed. Once we put aside the no-longer valid immutable-trait requirement and instead analyze the complaint under the stereotyping doctrine from Price Waterhouse, the complaint easily sets out a plausible claim for race-based disparate treatment. It therefore should have survived CMS’s motion to dismiss. See Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (“[T]o survive a motion to dismiss, a complaint must [ ] contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007))).
Price Waterhouse teaches that, for purposes of
The EEOC clearly alleged that dreadlocks are a stereotyped trait of African Americans. The complaint explains that the perception that dreadlocks are “unprofessional” and “not neat” is grounded in a deep-seated white cultural association between black hair and dirtiness. This perception has origins in slavery itself. See Doc. 21-1 ¶ 20 (alleging that the term “dreadlock” originated during the slave trade, when “slave traders referred to the slaves’ hair as ‘dreadful’ because slaves’ hair often ‘became matted with blood, feces, urine, sweat, tears, and dirt’ during the transatlantic voyage). Thus, the complaint plainly asserts, the “assumption” that “dreadlocks inevitably will get messy” is “based on stereotyped notions of how Black people should and should not wear their hair and is premised on a normative standard and preference for White hair.”
The EEOC also alleged that CMS relied on this racial stereotype when it rescinded Ms. Jones’s job offer. To begin, there is certainly daylight between CMS’s formal, written grooming policy, which did not single out any particular hairstyle, and its informal, unwritten ban on dreadlocks. CMS’s written grooming policy was race-neutral: all employees’ hairstyles must “reflect a business/professional image” and must not be “excessive.” Yet CMS then decided to interpret this race-neutral policy to ban a particular type of hairstyle.
Price Waterhouse tells us that an employer’s mere mention of a stereotype related to the employee’s protected class does “not inevitably prove that [the employee’s protected status] played a part in [the] particular employment decision.” 490 U.S. at 251, 109 S.Ct. at 1791. Instead, the plaintiff has the burden to “show that the employer actually relied on her [protected class] in making its decision,” and “stereotyped remarks can certainly be evidence” of that. Id.
Again, this case was decided on the pleadings. The EEOC therefore had no obligation to prove that CMS reneged on Ms. Jones’s job offer because of her race. It only had to allege facts to show this is plausible. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974. I view the allegations I’ve discussed as sufficient to support a plausible claim that CMS relied on Ms. Jones’s race in deciding to revoke her offer of employment. The stereotyping here, like that in Price Waterhouse, “did not simply consist of stray remarks” by a non-decisionmaker. See 490 U.S. at 251, 109 S.Ct. at 1791. The racial stereotype was the express reason, indeed the only reason, CMS gave for not hiring Ms. Jones. And it came straight from the manager who decided not to hire her. See Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1242 (11th Cir. 2016) (holding that remarks based on sex stereotypes constituted circumstantial evidence of sex discrimination sufficient to overcome summary judgment where the remarks were made “during conversations about” the employment decision; “in relative temporal proximity to” the decision; and “specifically refer[ed] to” the company’s preferences).
But the EEOC’s complaint alleged another fact that shows, above and beyond plausibility, that CMS “actually relied on” Ms. Jones’s race in deciding to rescind her offer. See Price Waterhouse, 490 U.S. at 251, 109 S.Ct. at 1791. Immediately after Ms. Wilson gave Ms. Jones the purported nondiscriminatory reason for CMS’s dreadlocks ban—“they tend to get messy”—she acknowledged that reason did not apply to Ms. Jones’s hair: “I’m not saying yours are [messy].” CMS thus recognized the distinction between dreadlocks that are truly “messy” and dreadlocks that aren’t, and demonstrated it can tell the difference between the two. Even so, after it acknowledged that Ms. Jones’s hair wasn’t messy, CMS enforced the dreadlocks ban against her anyway. This did nothing to further the nondiscriminatory reason CMS gave for the company’s dreadlocks ban. Because CMS openly acknowledged that its only nondiscriminatory reason for the dreadlocks ban did not apply to Ms. Jones, we are left with only her race as the basis for its decision not to hire her. There is no other explanation for the company’s refusal to hire a black applicant whose dreadlocks it recognizes do not
D.
I have examined why the panel was wrong to apply the immutable-trait requirement and why, under Price Waterhouse, the EEOC’s complaint states a claim for race discrimination. But even if we were to ignore Price Waterhouse and apply Willingham’s immutable-trait requirement, the panel still reached the wrong result. The complaint clearly alleges that dreadlocks are an immutable trait that satisfies the Willingham requirement.
The panel says it defines an “immutable” trait as one that is “beyond the [plaintiff]’s power to alter,” Catastrophe Mgmt., 852 F.3d at 1029 (quoting Garcia, 618 F.2d at 269), so characterizing dreadlocks as mutable might sound right. No one disputes that dreadlocks can be altered. Indeed, the complaint specifically described the “expensive and harsh treatments” that many African Americans use to “straighten their hair” “[i]n response to a pervasive animus toward the natural texture of Black people’s hair.” It also alleged that African Americans “wear wigs, hair pieces, or extensions to create an appearance that is consistent with Caucasian hair and style standards.”
So the question of whether dreadlocks are “immutable” for purposes of Willingham depends entirely on how we define that term. “[B]eyond the [plaintiff]’s power to alter” is certainly the definition that supports the panel’s holding that dreadlocks are not immutable. Id. However, in order to justify its distinction between Afros and dreadlocks, the panel uses another definition of the term. Certainly, “beyond the [plaintiff]’s power to alter” is not the definition of “immutable” that would support holding an Afro to be immutable. The same “expensive and harsh treatments” that a black person can use to turn dreadlocks into Caucasian-looking hair can be used to the same effect on an Afro. Thus, the panel turns to a different set of definitions of “immutable.” Those are: “characteristics [that] are a matter of birth, and not culture,” id. at 1027; “inherited physical characteristics,” id.; “[characteristics] that an employee is born with,” id. at 1029 n.4; and, a characteristic that is not “ ‘the product of ... artifice,’ ” id. at 1030 (quoting Rogers v. Am. Airlines, Inc., 527 F.Supp. 229, 232 (S.D.N.Y. 1981)). Taken together, the panel defines “immutable” as a trait that is naturally occurring.
Using this definition of “immutable,” the complaint certainly alleged the immutability of dreadlocks. The complaint said “[d]readlocks are formed in a Black person’s hair naturally, without any manipulation.” (Emphasis added.) It also referred to dreadlocks as the “natural texture” of black hair and “African Americans[’] ... natural hair.” And it explained that “[g]enerally, the hair of Black people naturally grows in very tight coarse coils. In contrast, the hair of White people typically grows straight or in softly curled patterns.” Finally, the complaint described dreadlocks as “physiologically and culturally associated with people of African descent.” (Emphasis added.) If this isn’t enough to allege that dreadlocks occur naturally in black people’s hair, I don’t know what is.7
The panel evidently believed that an Afro is black hair in its natural, unmediat
* * *
The appearance of a person’s hair is always capable of change—hair can be cut, straightened, curled, or covered. The question is whether Title VII protects a black employee’s choice to wear her hair in its natural state. The panel concedes it does. See id. at 1030. That leaves only the question of whether the EEOC’s complaint sufficiently alleged that dreadlocks are natural hair. It does.
III. CONCLUSION
“[T]he very purpose of [T]itle VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.” Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 855, 28 L.Ed.2d 158 (1971) (quotation omitted). Although instances of open and obvious racial discrimination in the workplace still exist, intentional discrimination may now take on more subtle forms. In many cases an employer’s racial preference will be camouflaged by policies that appear facially neutral. That is what the EEOC alleged happened to Ms. Jones. A ban on “all” applicants with dreadlocks is about as race-neutral as a ban on “all” applicants with dark-colored skin.
The panel’s conclusion that, as a matter of law, a blanket ban on dreadlocks does not violate Title VII’s prohibition on disparate treatment is simply wrong. And so is the immutable-trait requirement the panel used to get there. If Title VII prohibits an employer from rescinding a job offer because it perceives a female applicant’s appearance to be insufficiently feminine (or overly masculine), see Price Waterhouse, 490 U.S. at 256, 109 S.Ct. at 1794, it must also prohibit an employer from rescinding an offer because it perceives a black applicant’s appearance to be insufficiently white (or overly black). My colleague Judge William Pryor recently pointed out that a female employee “can state a claim that she experienced ... [sex] discrimination for wearing a ‘male haircut.’ ” Evans, 850 F.3d at 1258 (William Pryor, J., concurring). By the same logic, a black employee like Ms. Jones should be able to state a claim of race discrimination for wearing her hair in dreadlocks—a “black haircut.”
Surely, the viability of Title VII cannot rest on judges drawing distinctions between Afros and dreadlocks. Yet that is what the panel opinion seems to call for. The opinion requires courts and litigants to engage in a pseudo-scientific analysis of which racial traits occur naturally and which do not. This is not how we should be deciding cases of race discrimination.
There was a time in our nation’s history when a person’s legal status was dictated by whether she was white or black. Courts frequently adjudicated the physical features that “[n]ature has stampt upon the African and his descendants.”8 Hudgins v. Wright, 11 Va. 134, 139 (Va. 1806) (stating
I respectfully dissent.
BEVERLY B. MARTIN
UNITED STATES CIRCUIT JUDGE