Another Hair Piece: Exploring New Strands of Analysis Under Title VII
Georgetown Law Journal, Vol. 98, 2010
55 Pages Posted: 24 Feb 2010 Last revised: 21 Jan 2021
Date Written: February 23, 2010
This Essay re-examines antidiscrimination case law that allows employers to enforce hair grooming policies that prohibit natural hairstyles for black women, such as braids, locks, and twists. In so doing, this Essay sets forth an intersectional, biological - as opposed to cultural - argument for why such bans are discriminatory under Title VII.
Specifically, this Essay argues that antidiscrimination law fails to address intersectional race and gender discrimination against black women through such grooming restrictions because it does not recognize braided, twisted, and locked hairstyles as black-female equivalents of Afros, which are protected as racial characteristics under existing law. The claim here is that, based on current rationales, natural hairstyles for black women should already be protected under antidiscrimination law and are currently excluded only because of courts’ incomplete understanding of the nature of black women’s hair. Additionally, this Essay argues that courts should extend the application of the special “undue burden” test from gender discrimination cases to race discrimination cases and apply the test intersectionally in hairstyle-related grooming code cases brought by black women. Specifically, this Essay argues that antidiscrimination law fails to address such intersectional race and gender discrimination against black women because it does not recognize the undue burdens that such policies impose on black women to either hide or change a natural, phenotypical characteristic. Overall, this Essay explains the dangers of implicit racial bias in the workplace as demonstrated by raced and gendered norms in grooming codes that place a ban on hairstyles such as braids, locks, and twists.
Keywords: Title VII, Discrimination, Employment, Race, Gender, Intersectionality, Hair, Grooming code, Dress code, Appearance, Undue burdens, Unequal burdens, Disparate Treatment, Disparate Impact, Bias, Stereotyping, Immutable, Mutable, Jespersen, Rogers v. American Airlines, Racism, Sexism, BFOQ
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