Ad10 annotated bibliography

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Use the Attached Template and structure an annotated bibliography APA 7th edition format of the Article attached


250 words


Example Reference Format

Baker, V. L., & Pifer, M. J. (2011). The role of relationships in the transition from doctor to independent scholar. Studies in Continuing Education, 33(1), 5-17. 2010.515569

Provide a reference and an annotation (150-250 words) that includes important details about the article for each of the sources.

Annotations are descriptive and critical assessments of literature that help researchers evaluate texts and determine relevancy in relation to a research project. Ultimately, it is a note-taking tool that fosters critical thinking and helps you evaluate the source material for possible later use. Instead of reading articles and forgetting what you have read, you have a convenient document full of helpful information. An annotated bibliography can help you see the bigger picture of the literature you are reading. It can help you visualize the overall status of the topic, as well as where your unique question might fit into the field of literature. 





The Civil Rights Act of 1964 was supposed to create ultimate protections
against racial discrimination in the workplace, but the reality is that it has
been a far from perfect solution. Minority groups across the United States
still .face signijicant barriers to employment. with African Americans in
particular Jhcing employment discrimination because of the personal choice of
whether or not to wear their natural hair. For decades, African Americans
have been denied *om working opportunities and fired *om held positions for
wearing their hair naturally. Despite early decisions providing protections
for Altos, courts have recently been unwilling to apply Title VII race
protections to cases involving natural African American hair. The Eleventh
Circuit Court of Appeals in EEOC v . Catastrophe Management Solutions used
the immutability doctrine to withhold employment discrimination protections
.found in Title VII jiom natural African American hair discrimination. With
not much current hope in the Court’s ability to provide much needed
protections for African Americans, it is time to turn to state legislation to get
the job done. States like New York, New Jersey, and California have all
established protections for this type of racial discrimination in ways that the
courts have been unable or unwilling to do up until this point. The CROWN
Act has taken the United States by storm, and it avoids the biggest pitfalls that
have prevented the extension of Title VII protections against race
discrimination for traditional African American hairstyles. Although the
Supreme Court has not made a ruling on this specific topic, it is clear that the
lower courts have significant problems with providing these protections
through Title VII, and it is time to change the focus of the conversation to
provide protections through state legislation instead.

* Candidate for Juris Doctor, Notre Dame Law School, 2021; Bachelor of Arts in Political

Science, University of Maryland, 2018. The author would like to thank Professor McAward for
her assistance in the creation of this Note.




In 2018, Andrew Johnson was a high school sophomore who prepared
for what he thought would be a normal high school wrestling match. Instead,
what Andrew experienced that day would spark national debate and outrage
not specifically about wrestling, but about the way he wore his hair.’ Before
Johnson could wrestle his match, the referee gave him a grim choice:
Johnson’s hair did not conform to the rulebook so he had to forfeit the match
or cut his dreadlocks off. 2 Johnson ultimately chose to cut his hair so that he
could play this match, and not very long after a video of a white trainer cutting
off his dreadlocks swept across the nation.3 The incident sparked national
outrage about racial discrimination in sports with New Jersey Governor Phil
Murphy stating: “No student should have to needlessly choose between his or
her identity and playing sports.’.4 The ACLU echoed the statements from the
Governor, releasing a statement that read: “This is not about hair. This is about
race. How many different ways will people try to exclude Black people from
public life without having to declare their bigotry?”5

For Andrew Johnson, his natural dreadlocks meant he had to choose
between his identity and participating in his high school wrestling match.
There is no doubt that this was a difficult decision for Andrew, but
unfortunately for many others the situation has more dire implications.
African Americans have to make analogous difficult decisions about whether
to keep their natural hair or cut it so they can get a job. This Note explores the
different avenues that can be used to protect against race discrimination based
on natural African American hair. Part I will explore the historical context of
this problem within the United States, including the statutory origins for racial
discrimination protections in Title VII, the history of racial hair discrimination
in the United States, and the lengths African American men and women must
go through to conform to the expectations of white corporate America. Part Il
looks into the common law development in hair discrimination cases. Part
II.A looks at early protective development in the analysis of natural hair cases
in case law. Part II.B details the arguments in EEOC v. Catastrophe
Management Solutions which regresses from the initial protective stances
described in Part ILA. Part III explores recent efforts in New York, New
Jersey, and California to pivot away from judicial solutions towards state
statutory protections against racial discrimination based on natural African
American hair. This Article argues that the state legislation solutions used by
New York, New Jersey, and California can more quickly provide employment

1. See lacob Bogage, A White Referee Told a High School Wrestler to Clit His Dreadlocks
or Forfeit. He Took the Clit. WASH . POST ( Dec . 22 , 2018 , 1 : 36 PM ),

2. See id.
3. See id.
4. Id.
5. ld.


protections for African Americans rather than waiting for a solution from the


A. Title VII of the Civil Rights Act of 1964

Currently, there is no federal law that protects against appearance
discrimination, and that is why instead many people have turned to seek
protections under Title VII of the Civil Rights Act of 1964. Title VII was the
first act of Congress to expressly prohibit certain types of workplace
discrimination.6 The Act makes it illegal 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 or
(2) to limit, segregate, or classify his employees or applicants for -~
employment in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise adversely
affect his status as an employee, because of such individual’s race,
color, religion, sex, or national origin.7

The creation and implementation of Title VII largely came as a backlash
response to disproportionately high levels of African American unemployment
in the 1950s and 19602 Before 1964, African Americans were largely
limited to “unskilled and semi-skilled jobs:” and yet those jobs were
disappearing as a result of automation. 1 0 Title VII was crafted, at least in part,
to address the problem of African Americans being pushed out of the

6. Courts have interpreted Section 1981 of the Civil Rights Act of 1866 to prohibit
intentional race and color discrimination in the employment context. See Johnson v. Ry. Express
Agency Inc., 421 U.S. 454, 459-60 (1975); Jordan v. Whelan Sec. of Illinois, Inc., 30 F. Supp. Jd
746, 753 (N.D. Ill. 2014). However, Title VII goes beyond just racial discrimination and is not
limited to intentional discrimination.

7. 42 U.S.C. § 200Oe-2 (2018).
8. See United Steelworkers v. Weber. 443 U.S. 193,202 (1979). “In 1947, the non-white

unemployment rate was only 64% higher than the white rate; in 1962 it was 124% higher.” hi
(citing 110 CONG. REC. 6547 (1964) (remarks of Sen. Humphrey)). See also Juan F. Perea.

Ethnicity and Prejudice: Reevaluating “National Origin” Discrimination Under Title VII. 35

WM. & MARY L. REV. 805,806 n.6 (1994) (citing 110 CONG. REC. 2556 (1964) (remarks of

Congressman Cellar) (“You must remember that the basic purpose of Title VII is to prohibit
discrimination in employment on the basis of race or color.”)).

9. Weber, 443 U.S. at 202; 110 CONG. REC. 6548 ( 1964) (remarks of Sen. Humphrey).

10, See 110 CONG. REC. 6548 (1964) (remarks of Sen. Humphrey).


economy, or, as Senator Humphrey put it, to improve the lot of those who had
been “excluded from the American dream for so long.””

Although at the time the statute provided many never-seen-before
protections, it does have its limitations. The statute only provides protections
for five different protected characteristics: race, color, religion, sex, and
national origin. 12 Title VII does not protect anything that falls outside of
those protected statuses. This generally means that appearance-based
discrimination, such as discrimination based on how attractive you are, how
thin you are, or what kind of shoes you wear, is not illegal. 13 Unless a
convincing argument can be made that the appearance-based discrimination
somehow falls into one of the five protected categories of Title VII. it will not
afford any protections to the employee. Of course, this has led to cases
arguing about whether or not certain types of discrimination fall within those
five discrete categories.

The Supreme Court has interpreted Title VII to prohibit both intentional
and unintentional discrimination. Intentional discrimination includes
employment decisions that are consciously motivated by animus, 14
stereotypes,15 and mere consideration of a protected classification. 16
Unintentional discrimination protections have developed out of a disparate
impact theory of discrimination that was codified in 1991 in
42 U.S.C. § 200Oe-2(k)(1)(A)-(C).17 It covers employer policies that might be
neutral on their face but disproportionately affect a certain protected status,
For recoveries based on a disparate impact theory of discrimination, the
plaintiff must demonstrate that: 1) a facially neutral employment practice
causes a disproportionate impact on individuals who share the same religion,
color, national origin, race, or sex; and 2) the covered employer fails to adopt
a less discriminatory alternative that js job related and meets the employer’s
business needs. 18

On the employer side, the statute creates an affirmative defense for
companies, known as the Bona Fide Occupational Qualification (hereinafter
“BFOQ”) defense. 1 9 Under this exception, an employer may discriminate on

11. Id at (6552, Weber, 443 US at 204.
12. 42 U.S.C. § 200Oe-2 (2018). Protections against employment discrimination based on

age and disability exist in separate laws codified as the Age Discrimination in Employment Act
(29 U.S.C. §§ 621-633(a)) and Americans with Disability Act (42 U.S.C. §§ 12111-12117)

13 . See Donna Ballman , 7 Ways You Can be Firedfor Your Appearance-Legally, AOL:
JOBS (Feb. 20,2013,8:44 AM), https://www,

14. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973); Staub v. Proctor
Hosp., 562 U.S. 411.422 (20 11).

15. See Price Waterhouse v. Hopkins, 490 U.S. 228,256 ·58 (1989).
16. See Ricci v. DeStefano, 557 U.S. 557, 592-93 (2009).
17. 42 U.S.C. § 2000e-2(k)(1)(A)-(C) (2018). See also Griggs v. Duke Power Co., 401

U.S. 424,431 (1971).
18. 42 U.S.C. § 200Oe-2(k)(1)(A)-(C) (2018).
19. 42 U.S.C. § 2000e-2(e)( 1 ) (2018).


the basis of “religion, sex, or national origin in those certain instances where
religion, sex, or national origin is a bona fide occupational qualification
reasonably necessary to the normal operation of that particular business or
enterprise…. 4,20 In order to qualify as BFOQ, the discrimination must relate
to the ability to perform the duties ofthe job. The job qualification must relate
to the “essence „21 of the job or to the “central mission of the employer’s
business.’~2 The Supreme Court has read the defense narrowly,23 with
employers finding success in cases where sex discrimination is necessary on
the basis of safety24 or for age discrimination in occupations where public
safety is at risk, such as with pilots.25 However. this legislatively created
BFOQ can never apply to racial discrimination.26

Various courts have seen cases brought by African Americans seeking to
classify employer regulation of natural hair as a form of racial discrimination
in violation of Title VII.27 As explained in the following Section, however,
these efforts have been largely ineffective on the basis of judicial
understanding of hairstyles as a mutable characteristic.28

B. Anti-Black Hair Sentiment in the United States is Nothing New

Black hair has never settled comfortably in mainstream American
culture, and the root of that discomfort has very old origins. In the fourteen
and fifteen hundreds in Western Africa, “hair was an integral part of a
complex language system” that served as a marker of religion, social status,
and regional loyalty.29 During the forced transportation of African slaves to
the New World, often times “their hair became matted with blood, feces,
urine, sweat, tears, and dirt.”30 Some of the slave traders “referred to the
slaves’ hair as ‘dreadful ‘9, and thus dreadlock became a “commonly used word
to refer to the locks that had formed during the slaves’ long trips across the

„3 I When Africans were brought to the New World, many times theocean.

20. Id.
21.Dothard v, Rawlinson, 433 U.S. 321,333 ( 1977) (emphasis omitted).
22. W. Air Lines. Inc. v. Criswell, 472 U.S. 400,413 (1985).
23 . See Int ‘ I Union v . Johnson Controls , Inc ., 499 U . S . 187 , 201 ( 1991 ); Dothard. 433 U . S.

at 332-337; Trans World Airlines, Inc. v. Thurston. 469 U.S. 111, 122-125 (1985).

24. See Dothard, 433 U.S. at 332-337; Harriss v. Pan Am. World Airways, Inc., 649 F.2d
670 (9th Cir. 1980).

25. See Criswell, 472 U.S. at 411.
26, See Miller v. Texas State Bd. of Barber Exam’rs, 615 F.2d 650,653 (5th Cir. 1980).

27 . See Jenkins v . Blue Cross Mut . Ilosp . Ins .. Inc ., 538 F . 2d 164 ( 7th Cir. 1976 ), Rogers
v. Am. Airlines Inc., 527 F. Supp. 229,232 (S.D.N.Y. 1981); E.EOC v. Catastrophe Mgmt. Sols..
852 F.3d 1018,1021 (llthCir. 2016).

28. See Earwood v. Cont’l Se. Lines, Inc. 539 F. 2d 1349 (4th Cir. 1976)

BLACK HAIR IN AMERICA 2 (St. Martin’s Press 2001).

30. Catastrophe Mgmt. Sols., 852 r .3d at 1022 .
31. /d


first thing their European capturers did to them was shave their heads as a step
in erasing their African culture and identity.32

Once at the New World, hairstyles were still very important as they
could demarcate important identity traits among different groups of slaves. In
the 1700s, women who worked out in the fields commonly covered their heads
in head-rags due to the harsh physical demands of their work.33 On the other
hand, slaves who worked in the house sometimes mimicked the hairstyles of
their enslavers by wearing wigs or shaping their kinky hair to emulate them.34
The identification powers of African hairstyles were not limited to those that
were enslaved-freed slaves were also identified by different hairstyles. Laws
like the Tignon Laws in New Orleans dictated that free slave women were
required to wear a tignon, which was a kerchief that bound their hair to signify
that they were members of the slave class.35

Even after emancipation, the African American community has had a
complicated relationship with hair as beauty standards continued to favor
lighter, straighter hair, and yet there were movements seeking to promote
natural African American hair. At the end of the twentieth century, new
hair-straightening combs allowed Black women to tame their hair to match
white middle class standards.36 Despite the fact that there are many tools that
can be used to straighten African American hair, many women still choose to
wear their hair naturally. Throughout the twentieth century there were various
movements to embrace natural Black hair as beautiful,37 but despite efforts to
get African Americans themselves to embrace their natural hair, corporate
America has not made similar movements.

Unfortunately, there are many examples of corporate America rejecting
natural African American hair. Ashley Baker, a white, former associate editor
of the magazine Glamour, told a room full of female attorneys that Afro-styled
hairdos and dreadlocks were Glamour “don’t’s” and that their political
hairstyles really had to go. ‘8 Carl Dameron, an A frican American owner of a
public relations firm, “told his [B]lack female employees that outside of

BLACK HAIR IN AMERICA 4, 10 ( St . Martin’ s Press 2001 ): Brenda A . Randle, / Ant Not My Hair:
African American Women £ind Their Struggles with Embracing Nantral flair!. 22 RACE, GENDER
& CLASS J. 114,117(2015).

33. See Chantd Griffin, How Natural Black Hair at Work Became a Civil Rights Issue,
JSTOR DAILY (July 3, 2019).
civil-rights-issue/, Randle, stipra note 32, at 117.

34 . See Cheryl Thompson , Black Women, Beauty, and Hair as a Matter of Being, 38
WOMEN’S STUD. 831,833 (2009).

35. See Donald E. Everett, Free Persons of Color in Colonial Loilisiana, 7 J . LA. HisT.
ASS’321,34(1996), Griffin, supra note 33.

36. See Griffin, supra note 33.
37 . Seeid.
38 . Tania Padgett, Having Ethnic Hair in Corporate America. DAILY IIERALD ( Dec . 16 ,

d5272-71 f4-552e-b563-e90dd82e442d.html.


short-cropped Afros, most ethnic hairstyles are a ‘no-no’ in his office.”39
Every day African-American men and women face the pressure of taming
their hair to make themselves have a “professional” look,4(i with African
American women being almost twice as likely as white women to experience
social pressure at work to straighten their hair.41 Joan Williams. founding
director of the Center for WorkLife Law and distinguished professor of law at
U.C. Hastings, explained that “[ilt’s taken time for white people to recognize
that African Americans have to self-edit in a way that is, in addition to and on
top of, the ways that all ofus have to self-edit to keep our jobs.”~2

C. The Physical Characteristics of African-American Hair and the Process of
Changing Them To Conform to White Corporate American Standards

White corporate America believes that a conservative and professional
look means straightening African American hair, which has resulted in a
billion-dollar industry based on the manipulation of natural African American
hair. For decades, employers have told African American employees and
applicants that their natural hair would not be allowed in the workplace.
African American women are consistently told that their naturally textured
hair is “‘messy,’ ‘unkempt, ‘ ‘dirty,’ and ‘unprofessional.”~3 This perception
combined with the aforementioned historical rejection of natural African
American hair has led to an American opinion that “Good Hair” is hair that is
“wavy or straight in texture, soft to the touch, has the ability to grow long, and
requires minimal” treatments or products.44 Good hair does not resemble
natural African American hair.

This idea persists even today, with white women rating textured hair as
less beautiful,’ ‘less sexy/attractive,’ and ‘less pro fessional than smooth

39. Id.
40. See generally Renee Henson, Comment, Are My Cornrows Unprofessional?: Title

VII’s Narrow Application of Grooming Policies. and its Efect on Black Women’s Natural Hair in

the Workplace, 1 Bus., ENTREPRENEURSHIP & TAX L. REV. 521 (2017). Padgett, supra note 38;

Angea Onwuachi-Wil,g~ Another Hair Piece: Exploring New Stran£is of Analysis Under Title

Flt, 98 GEo. L. J. 1079 (2010).


42 . Nicquel Terry Ellis & Charisse Jones , Banning Ethnic Hairstyles ‘ Upholds This Notion
of White Supremacy.’ States Pass Laws to Stop Natural Hair Discrimination. USATODAY (Oct.

14,2019,2:20 PM),

43. D. Wendy Greene. Splitting Hairs: The Eleventh Circuit’s Take on Workplace Bans

Against Black Women ‘s Natural Hair in EEOC v . Catastrophe Management Solutions . 71 U .
MIAMI L. REV. 987,990 (2017); Randle, supranote 32, at 116.

44. JOHNSON. supra note 41 , at 2 .


hair. „,45 This pressure has taken its toll on those that do not match that strict
archetype. with Black women feeling more anxiety about their hair and more
pressure to straighten it at their workplace.46 A recent Dove study found that
“[a] Black woman is 80% more likely to change her natural hair to meet social
norms or expectations at work[,]1” and that “Black women are [50%] more
likely to be sent home or know of a Black woman sent home from the
workplace because ofher hair.”47

Straightening natural Black hair is not as easy as just taking fifteen
minutes in the morning to straighten it with a straightening iron. Black
women and men’s hair is not naturally straight; ‘Tilt is tightly coiled into tiny
curls. „48 It has a shape and composition different from other races, and it
makes it so that Black hair is more fragile and prone to breakage than other
types of hair.49 Repeated manipulation or chemical treatment of this kind of
hair can be physically damaging to both the hair and scalp. Pulling back
natural hair into pony tails, or straightening the hair either chemically or with
heat can cause conditions such as trichorrhexis nodosa and traction alopecia.50
Trichorrhexis nodosa occurs because of manipulation and tension in Black
hair that causes the hair to dry and break. 5 1 Traction alopecia results from
years of using hairpieces and hairstyles that exert tension on the hairs along
the perimeter of the hairline, causing coarse hair to disappear from follicles
leaving only peach fuzz.52 Medical harm might even go beyond just scalp
harm; a 2012 study published in the American Journal of Epidemiology found
a correlation between the use of hair relaxers and an increase in uterine
fibroids, which disproportionally impact Black women,53 In order to combat
these medical conditions, Black women often wear their hair in what are

45. Karen Grigsby B’ates, New Evidence Shows There’s Still Bias Against Black Natural
Hair. NPR (Feb. 6,2017,6:01 AM), 7/02/06/512943

46 . See JOHNSON , supra note 41 .
41. The Crown Act: Working to Eradicate Race-Based Discrimination, DOVE, I.
48. See Onwuachi-Willig, ,supra note 40, at 1094.
49 . See Venessa Simpson , What ‘s Going on Hair?: Untangling Societal Misconceptions

That Stop Braids, Twists, and Dreads from Receiving Deserved Title VII Protection. 41 Sw. L.
REv . 265 , 265 ( 2017 ). See generally Aline Tanus et al ., Black Women ‘s Hair : The Main Scalp
Dermatoses and Aesthetic Practices in Women of African Ethnicitv, 90 AN BRASDERMATOL 450

50 . See Simpson, supra note 49 , at 276- 77 . To learn more about the biological science
behind Trichorrhexis Nodosa see Ana Maria Pinheiro. Acquired Trichor,hexis Nodosa in a Girl:
The Use of Trichoscopy for Diagnosis, 1 DERMATOLOGY AND CLINICAL RSCH . ( 2016 ).

51 . See Simpson , supra note 49, at 276 .
52. See id at 277-78.
53. See Lauren A, Wise et a.. Hair Relaxer Use and Risk of Uterine Leiomyomata in

African -American Women, 175 AM. 3 . EPIDEMIOLOGY 432 , 435 (2012 ).


known as “protective styles”; styles like braids, twists and dreadlocks that
protect against harmful hair breakage that causes these conditions.54

Not only do Black women face health challenges when they straighten
their hair, but they also face steep financial burdens. Straightening Black hair
with a relaxer “costs approximately $60 to $300 for each full permanent or
$40 to $100 for each touch-up in between full relaxers ….”55 Either full
relaxers or touch-ups occur every four to eight weeks or sooner.56 The
straightening of natural African American hair has led to a billion-dollar
industry, one where black women “spend an estimated three times more than
white women on hair care.”57 Each treatment Black women receive takes
money and time out of their pockets for expenses that their white counterparts
simply do not have to deal with.

For these reasons and many others, some Black women make the very
personal decision to wear their hair naturally. Black women may choose to
wear a natural hairstyle to “minimize or eliminate the physical and financial
inconveniences that come along with wearing straightened hairstyles,” for
aesthetic reasons, as a form of racial pride, or to “challenge pervasive
expectations and pressures to wear a straightened hairstyle.”~M Despite the fact
that the decision is very complicated and personal, however, other
considerations might take the decision out of their hands. The decision to
wear hair naturally might cost people their jobs. Therefore, the pressure to fit
into corporate America is so prevalent it can overcome financial or
health-related considerations . As Robinson said in The Politics of Hair.
“[C]orporate America isn’t the only adversary of natural styles. Some Black
institutions discourage the ‘natural’ look, believing it’s best to prepare African
Americans to blend into a majority-White corporate environment. „59


A. Early Cases Create Smooth Edges for Natural Hair Protections

1 . A Brush in the Right Direction : The Case of Jenkins v. Blue Cross Mutual
Hospital In,surance

On June 8, 1971, Beverly Jenkins filed a charge with the Equal
Employment Opportunity Commission (hereinafter “EEOC”) accusing her

54. Simpson, st,pra note 49, at 266,
55 . Onwuachi -Willig , supra note 40 , at 1114 .
56. /d
57. ld. at 1115.
58. D. Wendy Greene. A Multidimensional Analysis of What Not to Wear in the

Workplace. Hijabs and Natural Hair. 8 rU. L. REV. 333,359 (2013)

59 . Lori S . Robinson , The Politics of Hair, THE CRISIS , Sept./Oct . 2006 , at 9 .


employer, Blue Cross Blue Shield, of discriminating against her on the basis
of race or color.60 Ms. Jenkins described her experience of discrimination as

I feel that 1 am being discriminated in the terms and conditions of
my employment because of my race, Negro. I have worked for
Blue Cross and Blue Shield approx. 3 years during which time I
[had] no problem until May 1970 when I got my natural hair style.
Later when I came up for promotion it was denied because my
supervisor, Al Frymier, said I could never represent Blue Cross
with my Afro.6 1

The Seventh Circuit Court said that Ms. Jenkins’ description of her
employer’s racial discrimination “could hardly be more explicit” and that
“[t]he reference to the Afro hairstyle was merely the method by which the
plaintiff’s supervisor allegedly expressed the employer’s racial
discrimination.”62 The court ultimately concluded “that the EEOC charge was
sufficient to support the racial discrimination allegations of the complaint.’,63
This decision echoed an earlier decision from the Fifth Circuit where “the
court held that a charge alleging discrimination stemming from grooming

“requirements [that] applied particularly to black persons” did constitute a
sufficient charge of racial discrimination…. 5,64 In this landmark case, the
Seventh Circuit Court in Jenkins determined that Afros are protected under
Title VII of the Civil Rights Act of 1964. However, this win would not last
long. In terms of Title VII litigation, Jenkins has primarily been cited and
used for its precedent related to the way discrimination charges are analyzed
within an EEOC charge, instead of its protections for African American hair.65

2. CreatingaNew Part: Rogers v. American Airlines

The win for protections of natural African American hair found in
Jenkins was unfortunately short lived. Only five years after the decision was
made in Jenkins to protect Afros from discrimination, a decision made by the
District Court of the Southern District of New York severely restricted those
protections.66 At the time this case came to court, Renee Rogers had been
working as an American Airlines employee for approximately eleven years

60. Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F,ld 164,167 (7th Cir. 1976). The
plaintiff did not put a check mark next to the box that read “Sex” on the EEOC charge form.

6. Id.
62. /d. at 168.
63. Id.
64. ld.: Smith v. Delta Air Lines, Inc,,486 F,ld 512,516 (5th Cir, 1973).
65. See Preyer v. Dartmouth Coll„ 968 F. Supp, 20. 24 (D.N.H. 1997). Williamson v,

Bethlehem Steel Corp., 488 F, Supp. 827, 833 (W.D.N.Y. 1980); Kristufek v. Hussmann
Foodservice Co.,985 F.ld 364,368 (7th Cir. 1993).

66. See Rogers v. Am. Airlines Inc., 527 F. Supp. 229 (S.D.N.Y. 1981).


and wore her hair in comrows.67 While Rogers worked there, American
Airlines had a policy that prohibited employees in certain employment
categories from wearing an all-braided hairstyle.68 While working there, it
was suggested to Rogers that she pull her hair back in a bun and wrap a
hairpiece around it during work hours.69 Rogers filed a suit against her
employer for sex and racial discrimination in violation of Title VII, among
other civil rights laws.70 Rogers alleged that the denial of the right to wear her
hair in the comrow style intruded on her civil rights and violated the
Thirteenth Amendment, 42 U.S.C. § 1981, and Title vII.71

Rogers argued that the comrow style “has been, historically, a fashion
and style adopted by Black American women, reflective of cultural, historical
essence of the Black women in American society.”72 The court, however, did
not find this compelling. The court used the immutability doctrine to draw a
line in the sand between hair texture on one side and hairstyles on the other.
The court agreed with Rogers and Jenkins that an Afro/bush style might
offend Title VII “because banning a natural hairstyle would implicate the
policies underlying the prohibition of discrimination on the basis of immutable
characteristics.”73 However, the court saw braided hairstyles like cornrows as
a completely different story. The court stated that all-braided hairstyles were
“not the product of natural hair growth but of artifice… [which] is an ‘easily

„74changed characteristic….
The court reasoned that because the hairstyle can be changed and

manipulated, it is not an impermissible form of discrimination.75 In order for
Rogers to win on her discrimination claim, she would have had to show that
cornrows were “exclusively or even predominantly worn by black people[,]”
however, the court reasoned that was not the case here because one white
actress popularized the look in the film “10” which came out before Rogers

67. Id. at 231. It has been revealed that the accurate spelling of the plaintiff’s last name is
Rodgers . Greene , supra note 43 , at 997 ( citing Paulette M . Caldwell , Intersectional Bias and the
Courts : The Storv o/’ Rogers v . Am . Airlines , RACE L , STORIES 571 , 575 n . 12 ( Devon W . Carbado
& Rachel F. Moran eds., 2008)), For the sake of clarity I will continue to use the spelling that the
official case name has, which is Rogers.

68. See Rogers, 527 F. Supp. at 231.
69. /d at 233.
70 . See d.
71. Id at 231.
72. M at 231-32.
73. M at 232.
74. Id.
75 . Id. This reasoning can be found in many other cases as well . See, e. g., Eatman v .

United Parcel Serv., 194 F. Supp. 2d 256 (S.D.N.Y. 2002) (finding UPS’s grooming policy
requiring drivers to wear hats to cover “unconventional- hairstyles was not discriminatory because
“locked hair” is not unique to African Americans), Pitts v. Wild Adventures, Inc., No. 06-CV-62,
2008 WL 1899306 (M.D. Ga. Apr. 25,2008) (finding dreadlocks and cornrows are not immutable
characteristics therefore a policy prohibiting those hairstyles is not discriminatory).


changed her hair.76 Thus, the court concluded that the American Airlines
braid policy had “at most a negligible effect on employment opportunity and
concerned “a matter of relatively low importance in terms of the constitutional

9,77interests protected by the Fourteenth Amendment and Title VII ….
The immutability doctrine used in Rogers has been applied in

employment discrimination contexts for decades. It is based on the idea that
traits such as race and national origin are determined solely at birth and cannot
be changed; therefore, treating people differently based on those traits would
seem to violate “the basic concept of our system that legal burdens should bear

„78 People cannot changesome relationship to individual responsibility….
their race, therefore it would be unfair to treat them differently because of it.
In many cases it appears the court has operationalized this immutability
distinction to draw a line in the sand between “corporeal” and “social” traits.79
Courts have found things that are perceived as biological traits such as race,
sex, and national origin are immutable and deserve protections,80 yet cultural
traits such as hairstyles can be changed and therefore are not afforded

However, scholars have criticized this theory as being “both over- and
underinclusive[,]”82 and, as with any line drawing test, it has problems with
borderline cases that do not seem to fall neatly into either category. In recent
years, some federal courts have suggested a changing understanding of what
the immutability analysis should look like. Instead of a question of whether or
not the characteristic could be changed, some federal courts have instead
inquired into whether or not the trait is central or fundamental to one’s
identity.83 That kind of inquiry may be persuasive when thinking about the

76. Rogers. 527 F. Supp. at 232.
77 . ld. at 23 1 .
78. Frontiero v. Richardson, 411 U.S. 677,686 (1973) (quoting Weber v. Aetna Cas. &

Sun Co., 406 U.S. 164,175 (1972)),
79. Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Prewmption

and the Case of “Don ‘t Ask, Don ‘t Tell “, 8 YALE L . J . 485 , 495 ( 1998 ).
80. See Frontiero. 411 U,S. at 686.
81 . See Rogers, 527 F . Supp . at 232 .
82. Yoshino, supra note 79, at 504. Yoshino further argues that the immutability doctrine

inappropriately causes courts to focus on the question of whether or not one has the ability to
assimilate or change, instead of focusing on whether or not assimilation in that context would be
appropriate in the first place . See also Jessica A . Clarke , Against immutability. 15 YALE L . J . 2

83. See Latta v. Otter, 771 F.Jd 456,464 n.4 (9th Cir. 2014) (“We have recognized that
‘[s] exual orientation and sexual identity are immutable. they are so fundamental to one’s identity
that a person should not be required to abandon them. „, ) (quoting Hernandez-Montiel v. I.N.S.,
225 F.3d 1084,1093 (9th Cir. 2000)); Whitewood v. Wolf, 992 F. Supp. 2d 410. 429 (M.D. Pa.
2014) (holding that sexual orientation is “so fundamental to one’s identity that a person should not
be required to abandon [it]”) (quoting //ernandez-Montiel, 225 F.3d at 1093), Bassett v. Snyder,
951 F. Supp. 2d 939, 960 (E,D, Mich, 2013) (“Even if sexual orientation were not immutable,
sexual orientation is an integral part of personal identity.”).


deeply personal ties African American men and women may feel to their
hairstyles. Regardless of what inquiry you use the concepts are too
amorphous and subjective to be able to say with any certainty that they would
afford protections to hairstyles.

Although the decision in Rogers supported protections for natural
African American hair found in Jenkins, it distinguished hairstyles using the
immutability doctrine’s “easily changeable” standard. Some have argued that
this decision came as a result of the court’s fundamental ignorance in both the
symbolic role natural hair plays in the identity of African American women
and the practical and technical requirements these types of braids entail.K4
Even if that is true , however, the analysis in Rogers stuck with the court and
influenced their jurisprudence in relation to natural hair policies for years to

B. Backcombing : EEOC v . Catastrophe Management Solutions Pulls Back on
Jenkins Protections

Chastity Jones filled out an online employment application for a
customer service position at Catastrophe Management Solutions (hereinafter
“CMS”) in May of 2010.85 CMS is an Alabama-based insurance claims
processing company and Jones was applying to take calls made to the call
center.86 After sending in the online application, Jones and a few others were
selected for an in-person group interview.87 Jones wore a blue business suit
with her hair in short dreadlocks to this interview.88 At no point during the
interview process did anyone say anything about Jones’s hair. 89 Jones was
hired for the position and met with Jeannie Wilson, the CMS human resources
manager. to talk about a scheduling conflict Jones had with the completion of
lab tests and paperwork that needed to be done before she could start work.90

Jones met with Wilson about this conflict and Wilson scheduled to have
Jones take the tests on a different day:’ Before Jones got up to leave from the
meeting, Wilson asked her whether she had her hair in dreadlocks and Jones
replied yes.92 Wilson informed Jones that CMS could not hire her with her
dreadlocks because “they tend to get messy, although I’m not saying yours
are, but you know what I’m talking about. „93 The human resources manager
told Jones about a male applicant who was asked by CMS to cut off his

84 . See Greene, supra note 43 , at 998- 1002 .
85. See EEOC v. Catastrophe Mgmt. Sol.,852 F.3d 1018,1021 (llth Cir. 2016).

86 . See d.
81. Id.
88. Id.
89. Id
90. /d
91. /d
91. Id.
93. Id.


dreadlocks in order to obtain a job with them.94 When Jones said she would
not cut off her dreadlocks for the position, Wilson told her CMS could not hire
her, rescinded her employment offer, and asked her to turn her paperwork
back in.95 Jones did as she was told.96 Although Jones was not informed by
Wilson about it, at the time CMS had a grooming policy which stated that
“[a]11 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

The EEOC filed a complaint on Jones’s behalf alleging CMS’s conduct

constituted discrimination on the basis of Jones’s race in violation of Title VII
of the Civil Rights Act of 19643 The complaint was filed in the United
States District Court for the Southern District of Alabama.99 The Alabama
District Court granted CMS’s motion to dismiss because they believed the
EEOC “did not plausibly allege intentional racial discrimination by CMS
against Ms. Jones. ‘.100 The EEOC appealed the case up to the Eleventh
Circuit. 101

The EEOC complaint proceeded upon a disparate treatment theory of
discrimination only. 102 They did not bring a claim under a disparate impact
theory. 103 This was a big misstep on the EEOC’s part, which ultimately led to
their claim being dismissed. Bringing a claim under the disparate treatment
theory requires the EEOC to prove that CMS intentionally discriminated
against Ms. Jones because of her race. 1()4 In contrast, if the EEOC had brought
a claim under the disparate impact theory, they would not have the burden of
proving any discriminatory intent, they would just have to prove that the
grooming policy had a disparate, adverse impact on African Americans
generally. 1()5 The Eleventh Circuit points out that, throughout the EEOC’s
argument, they appear to conflate the two ideas, 106 which undoubtedly made
their arguments less persuasive. In future litigation, the EEOC should focus
their efforts on bringing disparate impact claims alongside their disparate
treatment claims. The claims can be brought together, and it would give the

94 . Id. at 1021 -22 .
95. /d at 1022.
96. Id.
91. Id.
98. M. at 1020.
99. Id.
100. Id.
101 /d. at 1021.
102 . Id. at 1024.
103 . See id.
104 . See id.
105 . See id.


EEOC the opportunity to bring in evidence on ways these types of grooming
policies disproportionately affect African American populations. Bringing a
disparate impact claim would also help the EEOC circumvent arguments
about discriminatory intent. It would also relieve them of the tricky business
of tying the discrimination specifically to race. Instead, the EEOC would just
have to prove that there is a disparate impact on a specific race.
Unfortunately, that is not what the EEOC did in this case and. therefore, the
Eleventh Circuit did not address the EEOC’s arguments that this grooming
policy had disproportionate effects on Black job applicants. ’07

The EEOC complaint contained four arguments in favor of concluding
CMS’s action amounted to racial discrimination against Ms. Jones. 1()8 First,
the EEOC stated that race “is a social construct and has no biological
definition.” 109 Second, the EEOC asserted. “the concept of race is not limited
to or defined by immutable physical characteristics.”110 Third, the EEOC
Compliance Manual stated the “concept of race encompasses cultural
characteristics related to race or ethnicity” including “grooming practices.”‘”
Fourth, although some non-black persons “have a hair texture that would
allow the hair to lock,” the EEOC argued, „, dreadlocks are nonetheless a
racial characteristic, just as skin color is a racial characteristic.”,112

The EEOC argued that the definition of race needs to be expanded
beyond its current biological focus. 113 As the Eleventh Circuit acknowledges,
in the last several decades there has been an increasing call to interpret Title
VII more expansively to encompass cultural characteristics associated with
race. 114 This frees the concept of race from the rigid interpretation of it born
just by someone’s ancestry or skin color. The EEOC hoped that the Eleventh
Circuit would adopt this more expansive conceptualization of race so that
CMS’s prohibitions against locks fall under the protections afforded by Title

107. See id at 1024-25.
108 See id. at 1022 .
109. Id
110. ld.
111. /d
112. /d
113 . Id. at 1033 .
14. See id. See also an F. Haney Lopez, The Social Construction of Race: Some

Observations on lihision, Fabrication , and Choice, 19 HARV . C . R .-C . L . L . REV . 1 , 7 ( 1994 )
(defining “race” as “a vast group of people loosely bound together by historically contingent,
socially significant elements of their morphology and/or ancestry.7, Camille Gear Rich,

Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII. 19

N.Y.U. L. REV. 1134,1142 (2004) (“there is an urgent need to redefine Title VII’s definition of

race and ethnicity to include both biological, visible racial/ethnic features and performed features
associated with racial and ethnic identity “); D . Wendy Greene , Title VII: What ‘s Hair (and Other
Race-Based Characteristics) Got to Do H/ith It.7, 79 U. COLO. L. REV. 1355,1385 (2008) (“Race

includes physical appearances and behaviors that society, historically and presently, commonly
associates with a particular racial group. even when the physical appearances and behaviors are
not ‘uniquely’ or ‘exclusively’ ‘performed’ by, or attributed to a particular racial group.”).


VII because the hairstyle is associated with Blackness. l 15 This more
expansive view of race has been contemplated and used by the EEOC itself
when making administrative decisions about race discrimination.’16 The
Eleventh Circuit, however, did not find this argument convincing. The
Eleventh Circuit was concerned that the definition of culture was too broad
and fluid to be able to pin it down to a usable legal concept, and even if a
definition could be picked there would be an interpretative battle as to which
cultural traits should be protected.’ 17 Instead. the court doubled down on the
immutability doctrine, deciding that Title VII more likely protects immutable
characteristics as “a matter of birth, and not culture.” ll8

This demarcation between immutable and mutable characteristics led the
Eleventh Circuit to draw a line in the sand between hair texture and hair styles.
The court affirmed the decision made in Jenkins that Black hair texture is an
immutable characteristic, and Title VII prohibits discriminating on the basis of
it .” 9 On the other hand, the courts consider hairstyles a mutable choice ;
therefore, there are no Title VII prohibitions against it. 120 This argument is
reminiscent of the demarcation between Afros and braids established in
Rogers . 121 The court acknowledges “the distinction between immutable and
mutable characteristics of race can sometimes be a fine (and difficult) one, but
it is a line that courts have drawn. -122

A part of the Eleventh Circuit’s strict conception of race comes from its
analysis of the meaning of “race” that was likely understood by those that
worked to pass Title VII. 123 In choosing its more restrictive view of the term
race, the court argues that “[tlhere is little support for the position of the

115. Catastrophe Mgmt. S(}Is., 852 F .3d at 1024-25 .

Title VII race discrimination “includes discrimination on the basis of ancestry or physical or
cultural characteristics associated with a certain race, such as skin color. hair texture or styles, or
certain facial features.” Under “What is ‘Race Discrimination,” the EEOC defines race
discrimination based on physical characteristics as “[e]mployment discrimination based on a
person’s physical characteristics associated with race, such as a person’s color, hair, facial
features, height and weight,” U.S. EQUAL EMP, OPPORTUNITY COMM’N, EEOC-CVG-2006-1,

17 . Catastrophe Mgmt. Sols ., 852 F . 3d at 1033-34 .
118. M at 1027. Some scholars argue the court’s reliance on the immutability doctrine is

‘”legal fiction’: a rule created by judicial, legislative, and political bodies. which is not based in
fact , yet is treated as such in legitimating zones of protection and inclusion .” Greene , st,pra note
43, at 1029.

119. Catastrophe Mgmt. Sols.. 852 F.3dat 1030.
120 . See id.
121. /d
122. /d
123. See id at 1028.


EEOC that the 1964 Congress meant for Title VII to protect ‘ individual
expression.., tied to a protected race. „,124 In other contexts, however, the
Supreme Court has been willing to read Title VII’s protected categories
expansively . In Price Waterhouse v. Hopkins. the Supreme Court expanded
the conception of sex discrimination to include discrimination on the basis of

125sex stereotyping Similarly, although Congress did not originally
conceptualize sex discrimination to include sexual harassment , in Meritor
Savings Bank, FSB v. Vinson the Supreme Court held sexual harassment is a
form of sexual discrimination covered by Title VII . 126 In Oncale v.
Sundowner Ofshore Services, the Supreme Court again expanded the
conception of sex-based discrimination by including same-sex discrimination
(discrimination of men by men). 127 In all of these cases, the Supreme Court
stretched the concept of sex discrimination beyond the concept it held at the
creation of Title VII . In Oncale, Justice Scalia shed some light on why the
Supreme Court was doing this: “[S]tatutory prohibitions often go beyond the
principal evil to cover reasonably comparable evils, and it is ultimately the
provisions of our laws rather than the principal concerns of our legislators by
which we are governed. „128

If this logic were applied to race discrimination, it seems like the Court
would be willing to expand racial discrimination to also protect against hair
discrimination, a reasonably comparable evil. As stated earlier in this Note,
Title VII was created to fight against the evil of creating barriers of entry into
economic society for minorities, and hair discrimination perpetuates that same
evil. It is clear that the Eleventh Circuit was not willing to apply that
philosophy in Catastrophe Management Solutions, but it is unclear if that
argument would be more successful at the Supreme Court.

The Eleventh Circuit’s focus on the immutability doctrine and
texture/style distinctions has kept African American hairstyles such as
dreadlocks and braids outside of the protections of Title VII. Many scholars
have criticized this line drawing as not recognizing the reality that society can
mark someone’s racial identity with more than just the traits they are born
with, and that mutable characteristics have an important role to play in
someone’s racial identity. 129 There is a chance that in the coming years the
courts will change their outlook on the meaning of race. We saw the Supreme
Court’s meaning of the idea of sex rapidly expand over the last few decades
and if that philosophy gets applied in the racial context hair-based
discrimination could receive Title VII protections. Because the Supreme
Court of the United States denied certiorari on this case, however, the

124 /d. at 1027 .
125. Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989).
126. Meritor Sav. Bank, FSB v. Vinson. 477 U.S. 57 (1986).

127. Oncale v. Sundowner Offshore Servs., 523 U.S, 75 ( 1998).

128. /d at 79.
129. Greene. supra note 43, at 1024-25.


Eleventh Circuit ‘ s decision in Catastrophe Management Solutions is the
precedent we currently have in this area.


Now that the Supreme Court denied certiorari for the Catastrophe
Management Solutions , there will be no definitive ruling on the extent of race
as a Title VII status as it relates to hair discrimination any time soon. For the
foreseeable future, the circuits will be the ones to work that question out for
themselves, and, as we have seen, certain circuits are sticking with the more
restrictive view of race. In response, some states have passed their own state
statutory reforms to protect against hair discrimination. This Section will
show how states like New York, California, and New Jersey have led the
charge to incorporate more inclusive racial protections into their civil rights
statutes. 130

A. New York Protections

New York City was the first place to make waves in the hair
discrimination arena. In February of 2019, the New York City Commission
on Human Rights released legal enforcement guidance specifically about race
discrimination on the basis of hair. 131 As the legal enforcement guidance says,
the New York City Human Rights Law (“NYCHRL”) “protects the rights of
New Yorkers to maintain natural hair or hairstyles that are closely associated
with their racial, ethnic, or cultural identities. „132

The guidance explains why New York City chose to protect against hair
discrimination as a form of racial discrimination: “because [hairstyles] are an

130. There has been recognition of hair discrimination in other areas outside of the courts
and state legislatures as well. In 2014. the United States Army updated their AR 670-1 official
dress code regulations to effectively outlaw afros, most brai(is and all twists. The regulation
basically left female soldiers of color with three options: chemical straightening, heat
straightening, or extensions. The explanation for the new regulation was that it was a way to
promote uni formity and safety. See Phoebe Gavin, Opinion. What Does a Black Female Soldier’s
Hair Have to do with Defending Her Country?, GUARDIAN (Arr, 25,2014, 1:45 AM),
afros. The Congressional Black Caucus sent a letter to Secretary of Defense Chuck IIagel
protesting the new regulations as being “biased and racially insensitive.” The regulations were
rolled back, and the Army. Navy, and Air Force now allow cornrows, twists and some braids, See
Karen Grigsby Bates. Pentagon Does About-Face on Hair Regulations – Black Women Approve,
NPR: CoDI: SWITCH (Aug. 13,2014,6:40 PM), littps://


132. /d


inherent part of Black identity.”133 Hairstyles like Afros, comrows. and locks
have a commonly known racial association with Black people and employers
are assumed to know of this association. 134 The guidance says that grooming
policies that specifically target natural hairstyles associated with Black people
are discriminatory because they subject Black employees to disparate
treatment. 135 Although this guidance restricts employers’ ability to control
grooming policies, New York City does not relinquish all employer control.
The guidance still allows employers to make policies for legitimate health or
safety concerns, such as requiring the use of hair ties. hairnets, and hair

After the commission released this new law, they further explained their

rationale in a press release: “Bans or restrictions on natural hair or hairstyles
associated with black people are often rooted in white standards of appearance
and perpetuate racist stereotypes that black hairstyles are unprofessional. Such
policies exacerbate anti-Black bias in employment, at school, while playing
sports, and in other areas of daily living.”137

New York City’s “guidance on natural hairstyles is reported to be the
first in the country, 9,138 and it came less than a year after the Supreme Court
denied certiorari on Chastity Jones’s case. 139 Individuals can file complaints
against their employers to the NYC Commission on Human Rights’ Law
Enforcement Bureau. 140 Employers with four or more employees will face
fines of up to $250,000 if they do not comply with this guidance, and the
Commission can also punish non-compliant companies by imposing internal
policy changes within companies. 141

The state of New York did not stop with this guidance produced by New
York City Commission on Human Rights. On July 12, 2019, New York’s
Governor Andrew Cuomo amended the state’s Human Rights Law and
Dignity for All Students Act to include protections against more forms of

133. hi at 6.
134 . /d. at 6 -7 .
135 . Id. at 1 .
136 . /d. at 8 .
37. Sonia Thompson, New York City Just Banned Hair Discrimination: The Commonly

Overlooked Reason /t Impacts Your Brand, FORBES (Feb. 22,2019,8:05 AM).
discrimination-the-commonly-overlooked-reason-it-impacts-your-brand/#3fl de0782ca7.

138. See Katie Kindean, Black, Natural Hair Gets New Protections in New York City.
ABC NEWS (Feb. 19, 2019, 12:37 PM),

139. See EEOC v. Catastrophe Mgmt. Sols., 852 F.3d l 018 (l l th Cir. 2016).

140 . See N . Y . C . COMM ‘ NON HUM . RTS ., supra note 131 , at 3 .
141 . See Blanche Vathonne & Ruqayyah Moynihan , flair Discrimination is Now Illegal in

New York City , BUSINESS INSIDER FRANCE ( Feb . 19 . 2019 , 12 : 10 PM ).


racial discrimination. 142 Governor Cuomo explained the reasons behind the

For much of our nation’s history, people of color – particularly
women – have been marginalized and discriminated against simply
because of their hair style or texture. By signing this bill into law,
we are taking an important step toward correcting that history and
ensuring people of color are protected from all forms of
discrimination. 143

The bill amended their existing Human Rights Law, expanding the
definition of the term “race” in the bill to include “traits historically associated
with race, including but not limited to, hair texture and protective
hairstyles.” 144

The guidance and amendment have already proven to have bite. A
luxury Upper East Side hair salon was accused of telling Black workers that
Afros and braids did not fit the area’s upscale image. 145 Sharon Dorram, part
owner of the salon Sally Hershberger, sent text messages to the general
manager complaining of the “awful” hairstyles of three Black receptionists
and instructing the manager to tell them they could no longer wear their hair
down in braids or Afros. 146 The salon reached a settlement with the New York
City Commission on Human Rights that required it pay a $70,000 fine as well
as train their employees to work with Black hair and advance the careers of
non-white stylists. 147

B. CROWN Act in California, New Jersey, and Elsewhere

The legal guidance released by NYC’s Human Rights Commission was
the first of its kind to expand racial protections to cover natural Black hair,
but, before New York State passed protections statewide, California passed
the first statewide protections. California was the first state to outlaw racial

142 . Governor Cuomo Signs 56209A/*7797A to Make Clear Civil Rights Laws Ban
Discrimination Against Hair Styles or Textures Associated with Race, GOVERNOR’SPRESS OFF.
(July 12, 2019),

143. ld
144. S.B. S6209A, 2019-2020 Legis. Sess. (N.Y. 2019).
45. Ed Shanahan, Salon Accused of Bias Will Be Talight to Style Black Hair. N.Y.TIMES

(Nov. 12, 2019),

46. Maiysha Kai, CROWNing Glory: New York City Just Resolved Its First Hair
Discrimination Case-and a Celebrity Stylist is Going to Pay, ROOT (Nov. 2.209),

147. ld.


discrimination based on hairstyle. 148 On July 3, 2019, California Governor
Gavin Newsom signed the CROWN (Create a Respectful and Open
Workplace for Natural Hair) Act into law, making it illegal for employers and
schools to enforce dress code policies that prohibit natural hairstyles like
Afros, braids, twists and locks. 149 Section one of the act goes as far as to call
out the federal courts for not understanding that Black hair can naturally be
presented in braids, twists, and locks, and therefore deserves to be protected
by Title VII, like Afros are. 15()

Senator Holly Mitchell, the bill’s author, said the bill’s protections
would hopefully help African Americans feel comfortable wearing their
natural hair without the fear of repercussions. thus helping to reduce pressure
to change their natural hair. 151 The Act received unanimous support in both
the California Assembly and Senate and it took effect on January 1, 2020.152
Since the Act only just went into effect, there is no data on its impact yet.

Shortly after California passed CROWN, New Jersey became the third
state to ban discrimination based on hair. On December 19,2019, New Jersey
enacted CROWN to amend the New Jersey Law Against Discrimination Act.
The New Jersey governor signed the bill one year to the day that Andrew
Johnson had his dreadlocks cut off by a wrestling referee. 153 Governor Phil
Murphy signed the bill into law, in effect saying, “[r]ace-based discrimination
will not be tolerated in the State of New Jersey. … No one should be made to
feel uncomfortable or be discriminated against because of their natural
hair.”154 Virginia quickly became the fourth state to pass the CROWN Act155
after the bill unanimously. passed in the senate and passed in the house. 156 The

48. See Phil Wi\on & Aexa Diaz. California Becomes First State to Ban Discrimination
Based on One ‘s Natural Hair, LA. TIMES (July 3 , 2019 ). https ://www . latimes . com/local / lanow/ la

149. S.B. 188. 2019-2020 Legis. Sess. (Cal 2019), lient.xhtnil?bill_id-20 1 920200SB 1 88.

150. /d.
151. Willon & Diaz, supra note 148.
152. S.B. 188, 2019-2020 Sess. (Cal. 2019),Legs,

littps:// _id=20 1 9202OOSB 1 88.

53. Dakin Andone, New Jersey Banned Discrimination Based on Hairstyle a Year After a
Black Student Wrestler Cut His Dreadlocks to Compete, CNN (De©. 19.209.6:56 PM),

54. id.
155. Francisco Guzman & Saba 1-{ainedy, lt’s Q#k·ial: Virginia is Now the Fow·th State 10

Ban Hair Discrimination. CNN (Mar. 5 , 2020 , 11 : 31 AM ).

56. Leah Asmeash, ff the Governor Signs This Bill, Virginia Will Become the Fourth
State to Ban Hair Discrimination. CNN ( Feb . 22 , 2020. 4 : 09 PM ).


Act passed in its fifth state (Colorado) 157 and sixth state (Washington)’58 in
quick fashion.

As momentum grows for the natural hair movement, more cities and
states are proposing the CROWN acts in their legislatures. Cincinnati, Ohio,
and Montgomery County, Maryland, are two localities that have passed
CROWN amendments. 159 Twenty other states across the country have
proposed the CROWN Act to their legislatures. 16() The CROWN Act has also
been introduced in Congress. 161

The Act itself received some attention in popular culture during the 2020
Oscars. During the show, “Hair Love” took home an Oscar for best-animated
short. 162 The animated short tells the story of an African American father who
learns how to style his daughter’s hair.’63 During his acceptance speech, co-
director Michael A. Cherry specifically called for support in passing the
CROWN Act in all fifty states. 164 While the effect of this speech is currently
unknown, the Act being mentioned during movies’ biggest night is certainly a
win for the visibility of the CROWN Act campaign.

C. h Is Time to Refocus on State Legislation

Preventing hair discrimination through state legislative reform instead of
attempting to get the courts to do it through an interpretation of Title VII
allows the reforms to be made without falling into the pitfalls of the Title VII
analysis. There are two main advantages to the state law reform strategy: It
does not require a case or controversy to be decided in court and it avoids

151. Saja Hind, Colorado Becomes 5th State to Ban Natural Hair Discrimination, DEN~.
Pc)ST (Mar. 6,2020,5:58 PM),
discrimination/. See also Jennifer Ford , CROWN Act Passes Colorado House , Moves on to Senate,
ESSENCE (Feb. 13,2020),

158. Associated Press, Ban on Race-Based Hairstyle Discrimination Signed Into Law, U.S.
NEWS (Mar. 19, 2020, 5:47 PM), https://www.usnews.coin/news/best-
law . See also lim Camden, Washington House Voles to Ban Hair Discrimination. SPOKESMAN –
REV. (Feb. 12,2020), https://www.spokesman,com/stories/202()/feb/12/house-votes-to-ban-hair-

59. The CROWN Act: Working to Eradicate Race-Based Hair Discrimination. DOVE, (last visited Feb. 16,2021).

160 See id.
61. Harmeet Kaur, In Just j Week, 3 States Considered Bills to Ban Discrimination

Based on Hair Texture or Stvle, CNN ( Feb . 16 , 2020 , 7 : 24 AM ). See CROWN Act
of 2019, H.R. 5309. 116’h Cong. (2019).

162 . Chevaz Clarke , “Hair Love ” Wins Oscar for Best Animated Short. CBS NEWS ( Feb .
9,2020,9:53 PM), https://www.cbsnews.coin/news/hair-love-wins-oscar-for-best-animated-short-

163. Id.
164. Id.


tricky discussions about immutability/race definitions that may have no
definitive answers.

First and foremost, state law reform avoids the need to find the perfect
case to litigate all the way up to the Supreme Court. Reforming law
completely negates any need to have a legal case in the first place, much less
one that has the perfect set of facts and perfect complainant to convince a
majority of the Supreme Court to afford protections against hair
discrimination. As was seen with EEOC v. CMS, one mistake in the
presentment of the theory of the case meant that the plaintiff could not proceed
on a disparate impact theory. Instead, stories like “Hair Love” and Andrew
Johnson’s can inspire legislators around the country to take action now,
instead of waiting for the right case to come along. Instead of waiting with
bated breath to see if the Supreme Court will even choose to hear a hair
discrimination case, arguments to add hair protections are being made right
now to state houses and senates across the country.

Second, it avoids any need to get into the tricky business of defining race
and maneuvering the immutability doctrine. As was shown earlier in this
Note, courts have been grappling with these complicated concepts for decades.
These cases have been bogged down by arguments trying to pin down the
concept of race and the applicability of the immutability doctrine to different
types of hairstyles. They are problems that arise by trying to fight this battle
in courts that are restricted to deciding these cases specifically by their
intemretation of the words written in Title VII, and they are bound to follow
precedents created by the courts. The Supreme Court would have to overturn
Rogers and Jenkins in order to expand Title VII protections to hair
discrimination. Although it appears the Court has been willing to do this in
sex and sexual orientation discrimination cases, there is no precedent that
currently suggests they would be willing to do that in hair discrimination
cases. Even if the Court were willing to expand or change the immutability
doctrine, there is no guarantee that its test will not fall into the same pitfalls of
ambiguity and rigidity that the current test has. State legislators do not have
the same restrictions. They are not slaves to the words and history of Title
VII, and they are not a court that has to give deference to precedents. Instead,
the state legislators can be innovative and create new protections that did not
already exist.

Allowing this battle to be fought in state legislation could also provide
the Supreme Court with the necessary data and shift in American attitudes that
it needs to change its perspective on racial discrimination. If enacted state
legislation causes the state to begin collecting data about enforcement actions
based on hair discrimination that data could be used later in federal courts to
prove disparate impact exists among black men and women. Additionally,
some of these state legislations have started to call out the federal courts for
not having a more progressive and modern view about what race
encompasses. If the CROWN Act and similar pieces of state legislation
continue to successfully be enacted in various states, the Court might be more
willing to adapt their view of race to modern expansive conceptions of race.
Current small steps in state legislation today could have an immensely


influential impact in the federal courts when that perfect hair discrimination
case finally makes its way up to the Supreme Court,

It is time for the discussion about hair discrimination to break out from
the rigid confines of Title VII protection and into a sphere where change can
happen now. State legislation changes can afford protections for African
American men and women today, and the CROWN Act’s success should be
continued until all Americans are covered.


The choice o f whether to keep hair natural or put it into locks or braids is
a deeply personal decision for every African American man and woman. It is
not just a simple question of what they think is pretty or in style, but it is a
question that involves important considerations about identity, health, time,
and finances. As Title VII is currently interpreted, it also involves considering
whether or not you are willing to sacrifice your job. Although the Supreme
Court has been willing to expand the protections afforded by other protected
classes in Title VII , its interpretation in Jenkins showed they were unwilling to
read race protections expansively. Understandably, the Court may be
unwilling to insert itself into the tricky job of defining race or changing the
immutability doctrine. Unfortunately, it has chosen to stick by a precedent of
rigid immutability doctrine that provides no protections for hair
discrimination. In order to get African Americans protections today, it is time
to focus attention on passing state legislation to solve this problem. States like
New York, New Jersey, and California have proven that passing these
protections is possible, and the success of the CROWN Act gives us hope that
someday soon, all African Americans will be free to choose the hairstyle they
want without fear of losing their jobs.

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