When is a hairstyle more than a just a fashion statement? Perhaps when it’s a symbol of racial identity.
But that’s rarely the case, according to a recent federal case that held that dreadlocks aren’t a racial characteristic. Lots of people are understandably upset about the outcome, but the decision is correct as a matter of current law. Lawmakers can and should remedy the situation by adding new protections for everyone working under unjustified dress codes. But let’s be clear about why: Needlessly strict dress codes are wrong because they infringe on individual freedom—not because they discriminate on the basis of race.
Last month, the U.S. Court of Appeals for the 11th Circuit held that an employer that refused to hire a black woman because of her dreadlocks did not commit such discrimination. In 2010, Chastity Jones applied for a job in a call center. Even though the job didn’t involve direct contact with the public, the employer required its workers to adhere to a dress code that demanded a “business/professional image” and prohibited “excessive hairstyles or unusual colors.” Jones got the job—on the condition that she cut off her dreadlocks. She refused, and Catastrophe Management Solutions rescinded her job offer. Jones took her case to the federal Equal Employment Opportunity Commission, who sued on her behalf under Title VII of the Civil Rights Act of 1964.
Jones’ complaint resonates with many people of all races because no one likes being told what to wear, and this dress code was clearly asking too much. Dreadlocks can’t just be taken out and put back on, so changing them for work effectively means cutting off hair that took years to grow. This big personal sacrifice—which would affect her even when she wasn’t working—was all just to qualify for a position as a call center operator whom no customer would ever see. And let’s face it: Working at a call center is not exactly a dream career with potential for long-term advancement that might justify such a trade-off.
But the legal question was not whether the dress code was fair or reasonable—it was whether it was discriminatory. Accordingly, the EEOC argued that Jones’ dreadlocks were a part of her racial identity and therefore “to ban the wearing of dreadlocks … discriminates on the basis of race.” As the court rightly ruled, this was a stretch: The argument wasn’t that the employer discriminated by applying the dress code disproportionately to black job applicants and employees or that the dress code was just a way of getting rid of black employees. The claim was that prohibiting dreadlocks—even as part of a much broader requirement of professional attire and grooming—was race discrimination per se because dreadlocks are a part of black identity in the same the way that, say, dark skin or curly hair might be thought to be. But if dreadlocks aren’t part of racial identity—if they are more like a fashion choice—then banning them is no different than banning purple hair or handlebar mustaches, neither of which is unlawfully discriminatory.
Jones’ discrimination claim also posed an important conceptual question: Is race a biological category defined by things like skin color, hair texture, or facial features? Or—as many social theorists and philosophers now insist—is race a social construct that many people associate with things like accents, comportment, dress, grooming, and hairstyles? This case was unusual because the appeals court addressed this philosophical question head on.
The court discovered that although most theorists agree that race is more than just biology, the court didn’t agree on exactly what else it is. That’s why the court adopted an argument I made in my book Racial Culture: Courts should give up on trying to figure out what counts as race. For every person like Jones who feels dreadlocks are part of her racial identity, there is someone who thinks dreadlocks are just a fashion statement. If dreadlocks are part of black identity, what else is? Sagging jeans, which are often associated with young black men? Those bizarre gold teeth grillz that some black rappers wear? Do-rags? Are these things really part of black culture, or are they really part of a subculture, in the same way plaid flannel shirts and bushy Grizzly Adams beards might be considered part of hipster culture as opposed to white culture? Is a dress code that bans sagging, grillz, and do-rags racially discriminatory per se? That might surprise the administration of the venerable historically black college Morehouse, which has a dress code that bans sagging jeans, do-rags, and “decorative orthodontic appliances.” And what about white people who have dreadlocks? Are they celebrating multiculturalism, are they guilty of “cultural appropriation,” or are they just making a fashion choice?
This idea that a distinctive culture defines a group is a double-edged sword that can just as easily help to justify inequality. In the past, when the courts have decided to make generalizations about the culture of vulnerable groups, they’ve often gotten it horribly wrong. For instance, in the 1988 dispute EEOC v. Sears, a federal court decided that women’s culture made them less assertive and thus less interested in demanding and competitive commission sales jobs—justifying the underrepresentation of women in positions with higher pay.
Of course, some dress codes really are veiled attempts to screen out disfavored groups. But the law hasn’t done a great job of ferreting out such cases: In fact, it’s an inconsistent hodgepodge. For instance, in order to avoid discrimination, employers must make special exceptions to their dress codes for religiously motivated attire. At the same time an employer can have different dress codes for men and women without, legally speaking, discriminating on the basis of sex as long as the dress code for each is “equally burdensome.” And while recent development in the law probably entitles a transgendered person to be governed by the dress code that matches his or her gender identity, it’s not clear where that leaves people who don’t identify as either men or women. Dress codes can ban hairstyles that result from artifice—such as dreadlocks—but not hair textures that are natural, such as Afros. That is, unless the Afro is too long, in which case the employer can prohibit it, just as it can prohibit long hair for employees with straight hair. Meanwhile—apart from this confusing welter of rules and exceptions—an employer can have pretty much any dress code it wants to, even when personal appearance has nothing whatsoever to do with the job.
We could clean up this mess by simply establishing a legal right to autonomy in personal appearance. Such a law would need to strike a balance between the employee’s interest in self-expression and the employer’s legitimate desire to control its image and promote professionalism. Demands for long-term changes in personal appearance—cutting hair or removing piercings—should be considered a bigger burden than requirements that employees make temporary grooming changes or wear specific kinds of clothing, which they can easily remove after work. The nature of the job matters too: There’s a stronger case for a strict dress code in the case of a highly visible position in an image-conscious business than for a stockroom worker or call center telemarketer. In low-wage, part-time, insecure jobs, it’s unfair—and should be illegal—to demand permanent or long-term sacrifices. But an employer that commits to job security and advancement opportunities in a conventional career might be justified in insisting that employees commit to a conventionally professional appearance. In practice regulating dress codes will require this kind of case-by-case balancing by the courts—and of course it won’t always be easy to tell a sensible dress code from an unreasonable one. But it will be a lot easier to see what’s really at stake when the real issue isn’t dressed up as a discrimination claim.
Professor Richard Thompson Ford (BA ’88) is an expert on civil rights and antidiscrimination law and has distinguished himself as an insightful voice and compelling writer on questions of race and multiculturalism.. He is the author of several books including The Race Card and Rights Gone Wrong.
This op-ed was originally published by Slate on October 10, 2016.