EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant,
CATASTROPHE MANAGEMENT SOLUTIONS, Defendant-Appellee.
from the United States District Court for the Southern
District of Alabama D.C. Docket No. 1:13-cv-00476-CB-M
ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and
JILL PRYOR, Circuit Judges. [*]
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 sitting en banc, and
a majority of the judges in active service on this Court
having voted against granting a rehearing en banc, it is
ORDERED that this case will not be reheard en banc.
JORDAN, Circuit Judge, concurring in the denial of rehearing
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woman, refused to remove her dreadlocks, CMS rescinded her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.
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.
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
* * * *
start, I think Judge Martin overstates what the Supreme Court
held in Price Waterhouse v. Hopkins, 490 U.S. 228
(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.
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 insufficiently feminine, Price Waterhouse seemed
to argue on appeal that such comments were irrelevant for
Title VII purposes. See Price Waterhouse, 490 U.S.
at 250-51. The plurality rejected that argument, explaining
that while stereotyped remarks did not "inevitably
prove" a disparate-treatment claim, they could
"certainly be evidence" that the firm
"actually relied on [Ms. Hopkins'] gender in making
its [employment] decision, " in violation of Title VII.
See id. at 251 (emphasis in original).
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.
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.
VII, the Supreme Court has told us, is not "a general
civility code for the American workplace."
Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006) (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998)). It requires
courts to determine whether a particular policy is
discriminatory, but not whether it is ideal or fair. The
panel here was not tasked with addressing whether CMS'
grooming policy is enlightened, or whether it makes sense in
our multicultural and evolving society. The panel decided
only whether the EEOC sufficiently alleged a Title VII
disparate-treatment claim under Supreme Court and Eleventh
* * * * *
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.
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 victim's power
to alter" to refer to a trait that a person cannot
change permanently because it is present from birth.
See 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.
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
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).
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.
* * * *
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.
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 for the texture of black hair and
culturally associated with [b]lack people." See
id. at ¶ 26. Finally, the complaint's
description of dreadlocks as "physiologically and
culturally associated with people of African descent, "
id. at ¶ 28, is similarly followed by the
statement that dreadlocks are "a manner of wearing hair
that is suitable to the texture of [b]lack hair."
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.
* * * *
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.
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. 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.
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.
* * * *
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 biological, cultural, consensus-based, or
some or none of the above; over who gets to make the call
about the meaning of race; and over how concepts associated
with race (including cultural traits) are treated. See
Catastrophe Mgmt., 852 F.3d at 1033-34 (collecting some
of the literature). There is even disagreement over whether
dreadlocks are exclusively (or even primarily) of African
descent. See ...