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Case: 14-13482 Date Filed: 09/15/2016 [PUBLISH] THE UNITED STATES COURT APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14-13482 ________________________ D.C. Docket No. 1:13-cv-00476-CB-M EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff Appellant, versus CATASTROPHE MANAGEMENT SOLUTIONS, Defendant Appellee. ________________________ Appeal from the United States District Court for the Southern District Alabama ________________________ (September 15, 2016) Before JORDAN and JULIE CARNES, Circuit Judges, and ROBRE District Judge. JORDAN, Circuit Judge: The Honorable Eduardo Robre United States District Judge for the Eastern District Pennsylvania, sitting designation. Case: 14-13482 Date Filed: 09/15/2016 The Equal Employment Opportunity Commission filed suit behalf Chastity Jones, black job applicant whose offer employment was rescinded Catastrophe Management Solutions pursuant its race-neutral grooming policy when she refused cut off her dreadlocks. The EEOC alleged that CMS conduct constituted discrimination the basis Ms. Jones race violation Title VII the Civil Rights Act 1964, U.S.C. 2000e 2(a)(1) 2000e 2(m). The district court dismissed the complaint under Federal Rule Civil Procedure 12(b)(6) because did not plausibly allege intentional racial discrimination CMS against Ms. Jones. See E.E.O.C. Catastrophe Mgmt. Solutions, Supp. 1139, 1142 (S.D. Ala. 2014). The district court also denied the EEOC motion for leave amend, concluding that the proposed amended complaint would futile. The EEOC appealed. With the benefit oral argument, affirm. First, the EEOC its proposed amended complaint and its briefs conflates the distinct Title VII theories disparate treatment (the sole theory which proceeding) and disparate impact (the theory has expressly disclaimed). Second, our precedent holds that Title VII prohibits discrimination based immutable traits, and the proposed amended complaint does not assert that dreadlocks though culturally associated with race are immutable characteristic black persons. Third, are not persuaded the guidance the EEOC Compliance Manual because Case: 14-13482 Date Filed: 09/15/2016 conflicts with the position taken the EEOC earlier administrative appeal, and because the EEOC has not offered any explanation for its change course. Fourth, court has accepted the EEOC view Title VII scenario like this one, and the allegations the proposed amended complaint not set out plausible claim that CMS intentionally discriminated against Ms. Jones the basis her race. The EEOC relies the allegations its proposed amended complaint, see Br. EEOC set out those allegations below. CMS, claims processing company located Mobile, Alabama, provides customer service support insurance companies. 2010, CMS announced that was seeking candidates with basic computer knowledge and professional phone skills work customer service representatives. CMS customer representatives not have contact with the public, they handle telephone calls large call room. Ms. Jones, who black, completed online employment application for the customer service position May 2010, and was selected for in-person interview. She arrived CMS for her interview several days later dressed blue business suit and wearing her hair short dreadlocks. Case: 14-13482 Date Filed: 09/15/2016 After waiting with number other applicants, Ms. Jones interviewed with company representative discuss the requirements the position. short time later, Ms. Jones and other selected applicants were brought into room group. CMS human resources manager, Jeannie Wilson who white informed the applicants the room, including Ms. Jones, that they had been hired. Ms. Wilson also told the successful applicants that they would have complete scheduled lab tests and other paperwork before beginning their employment, and she offered meet privately with anyone who had conflict with CMS schedule. this time one had commented Ms. Jones hair. Following the meeting, Ms. Jones met with Ms. Wilson privately discuss scheduling conflict she had and request change her lab test date. Ms. Wilson told Ms. Jones that she could return different time for the lab test. Before Ms. Jones got leave, Ms. Wilson asked her whether she had her hair dreadlocks. Ms. Jones said yes, and Ms. Wilson replied that CMS could not hire her with the dreadlocks. When Ms. Jones asked what the problem was, Ms. Wilson said they tend get messy, although not saying yours are, but you know what talking about. Ms. Wilson told Ms. Jones about male applicant who was asked cut off his dreadlocks order obtain job with CMS. Case: 14-13482 Date Filed: 09/15/2016 When Ms. Jones said that she would not cut her hair, Ms. Wilson told her that CMS could not hire her, and asked her return the paperwork she had been given. Ms. Jones did requested and left. the time, CMS had race-neutral grooming policy which read follows: All personnel are expected dressed and groomed manner that projects professional and businesslike image while adhering company and industry standards and/or guidelines. [H]airstyle should reflect business/professional image. excessive hairstyles unusual colors are acceptable[.] Dreadlocks, according the proposed amended complaint, are manner wearing hair that common for black people and suitable for black hair texture. Dreadlocks are formed black person hair naturally, without any manipulation, manual manipulation hair into larger coils. The EEOC alleged that the term dreadlock originated during the slave trade the early history the United States. During the forced transportation Africans across the ocean, their hair became matted with blood, feces, urine, sweat, tears, and dirt. Upon observing them, some slave traders referred the slaves hair dreadful, and dreadlock became commonly used word refer the locks that had formed during the slaves long trips across the ocean. Case: 14-13482 Date Filed: 09/15/2016 The proposed amended complaint also contained some legal conclusions about the concept race. First, the EEOC stated that race social construct and has biological definition. Second, the EEOC asserted that the concept race not limited defined immutable physical characteristics. Third, according the EEOC Compliance Manual, the concept race encompasses cultural characteristics related race ethnicity, including grooming practices. Fourth, although some non-black persons have hair texture that would allow the hair lock, dreadlocks are nonetheless racial characteristic, just skin color racial characteristic. Playing off these legal conclusions, the proposed amended complaint set out allegations about black persons and their hair. The hair black persons grows very tight coarse coils, which different than the hair white persons. Historically, the texture hair has been used substantial determiner race, and dreadlocks are method hair styling suitable for the texture black hair and [are] culturally associated with black persons. When black persons choose wear and display their hair its natural texture the workplace, rather than straightening hiding it, they are often stereotyped not being teamplayers, radicals, troublemakers, not sufficiently assimilated into the corporate and professional world employment. Significantly, the proposed amended Case: 14-13482 Date Filed: 09/15/2016 complaint did not allege that dreadlocks are immutable characteristic black persons. Our review this appeal plenary. Like the district court, accept true the well-pleaded factual allegations the proposed amended complaint and draw all reasonable inferences the EEOC favor. See, e.g., Ellis Cartoon Network, Inc., 803 F.3d 1251, 1255 (11th Cir. 2015) (dismissal complaint for failure state claim); St. Charles Foods, Inc. America Favorite Chicken Co., 198 F.3d 815, 822 (11th Cir. 1999) (denial motion for leave amend due futility). The legal conclusions the proposed amended complaint, however, are not presumed true. See Ashcroft Iqbal, 556 U.S. 662, 679 (2009); Franklin Curry, 738 F.3d 1246, 1248 n.1 (11th Cir. 2013). complaint must contain sufficient factual allegations state claim relief that plausible its face. Bell Atl. Corp. Twombly, 550 U.S. 544, 570 (2007). Title VII case like this one, the EEOC had set out enough factual content t[o] allow[ [a] court draw the reasonable inference that CMS liable for the intentional racial discrimination alleged. See Iqbal, 556 U.S. 678 (explaining that the plausibility standard requires more than mere possibility but not akin probability requirement Case: 14-13482 Date Filed: 09/15/2016 III1 The EEOC claimed its proposed amended complaint that prohibition dreadlocks the workplace constitutes race discrimination because dreadlocks are manner wearing the hair that physiologically and culturally associated with people African descent. So, according the EEOC, the decision CMS interpret its race-neutral written grooming policy ban the wearing dreadlocks constitutes employment practice that discriminates the basis race. The district court dismissed the initial complaint, and concluded that the proposed amended complaint was futile, because Title VII prohibits discrimination the basis immutable characteristics, such race, color, natural origin, and [a] hairstyle, even one more closely associated with particular ethnic group, mutable characteristic. Catastrophe Mgmt., Supp. 1143 (order granting motion dismiss). The district court was not swayed the EEOC contention that the allegations were sufficient because hairstyle can determinant racial identity, explaining that other courts had conclude that the notice appeal was timely because the EEOC motion for leave amend which part challenged the basis for the district court dismissal the original complaint properly treated Rule 59(e) motion which tolled the time for appeal. See Giuffre Deutsche Bank Nat. Trust Co., 759 F.3d 134, 137 (1st Cir. 2014) (holding that plaintiff post-judgment motion for leave file amended complaint tolled the time appeal because [i]n substance, [the] motion challenged the legal foundation the dismissal order and called the judge either revoke that order alter allow him leave amend Trotter Regents Univ. N.M., 219 F.3d 1179, 1183 (10th Cir. 2000) (holding that Rule motion filed within the time limit for filing Rule 59(e) motion tolls the time for filing notice appeal); Bodin Gulf Oil Corp., 877 F.2d 438, 440 (5th Cir. 1989) (holding that motion for leave amend constituted timely Rule 59(e) motion, and thus, the time for filing notice appeal commenced when the district court denied the motion). Case: 14-13482 Date Filed: 09/15/2016 rejected that argument. See id. The district court also declined the EEOC invitation discard the immutable/mutable distinction for Title VII race discrimination claims. See id. See also D.E. (order denying leave amend because the EEOC had already presented its more detailed allegations legal arguments support the initial complaint, and those arguments had been rejected). The EEOC advances number arguments appeal support its position that denying black person employment the basis her dreadlocks through the application race-neutral grooming policy constitutes intentional discrimination the basis race violation Title VII. The arguments, which build each other, are that dreadlocks are natural outgrowth the immutable trait black hair texture; that the dreadlocks hairstyle directly associated with the immutable trait race; that dreadlocks can symbolic expression racial pride; and that targeting dreadlocks basis for employment can form racial stereotyping. See Br. EEOC 39. Before address these arguments, discuss overarching problem concerning the EEOC liability theory. Despite some loose language its proposed amended complaint, the EEOC confirmed oral argument that proceeding only disparate treatment theory under U.S.C. 2000e-2(a)(1) Case: 14-13482 Date Filed: 09/15/2016 (making unlawful [for covered employer] fail refuse hire discharge any individual because such individual race, color, religion, sex national origin and not pursuing disparate impact theory under U.S.C. 2000e-2(k)(1) (permitting disparate impact claims for unlawful employment practices and setting out applicable burdens proof). This matters because the two theories are not interchangeable, and courts must careful distinguish between the[m.] Raytheon Co. Hernandez, 540 U.S. 44, (2003). See also E.E.O.C. Joe Stone Crab, Inc., 220 F.3d 1263, 1283 (11th Cir. 2000) (concluding that allowing plaintiffs who alleged disparate treatment assert disparate impact claim would unwisely conflate the distinct theories disparate impact and disparate treatment prevail disparate treatment claim, Title VII plaintiff must demonstrate that employer intentionally discriminated against her the basis protected characteristic. See Ricci DeStefano, 557 U.S. 557, 577 (2009). contrast, disparate impact claim does not require proof discriminatory intent. disparate impact claim targets employment practice that has actual, though not necessarily deliberate, adverse impact protected groups. See id. Given the EEOC disparate treatment claim, the proposed amended complaint had contain sufficient factual allegations set out plausible claim that CMS intentionally discriminated against Ms. Jones, individually, because her race. Case: 14-13482 Date Filed: 09/15/2016 Despite its decision assert only disparate treatment claim, the EEOC times conflates the two liability theories, making disparate impact arguments support its disparate treatment claim. See Br. Chamber Commerce the United States Amicus Curiae (pointing this out). The EEOC, for example, faults the district court for not allowing expert testimony the racial impact dreadlock ban and for failing acknowledge the critical disadvantage which the dreadlock ban places Black applicants. Br. EEOC (emphasis added). also asserts that the people most adversely and significantly affected dreadlocks ban, such CMS are African-Americans. Id. (emphasis added). And argues that policy which critically disadvantages affects members one group over another can support intentional discrimination claim. See Reply Br. EEOC (emphasis added). Because this disparate treatment case, and only disparate treatment case, not address further the EEOC arguments that CMS race-neutral grooming policy had (or potentially had) disproportionate effect other black job applicants.2 Statistical evidence, course, can sometimes probative intentional discrimination, see, e.g., Int Bhd. Teamsters United States, 431 U.S. 324, 335 n.20 (1977), but the EEOC did not allege, and does not claim, that there statistical evidence showing (or allowing reasonable inference of) pattern practice disparate treatment the part CMS. Nor there any claim that CMS applied its grooming policy differently black applicants employees, was the case Hollins Atl. Co., Inc., 188 F.3d 652, 661 (6th Cir. 1999). Case: 14-13482 Date Filed: 09/15/2016 its notice supplemental authority the EEOC relies the Supreme Court recent decision Young United Parcel Serv., Inc., 135 S.Ct. 1338 (2015), case involving U.S.C. 2000e(k) provision the Pregnancy Discrimination Act support its use disparate impact arguments this action. Young, however, does not work dramatic shift disparate treatment jurisprudence. Young, the Supreme Court dealt with the accommodation requirements the PDA. Specifically, considered how implement the statutory mandate that employers treat pregnancy-related disabilities like nonpregnancy-related disabilities situation where employer does not treat all nonpregnancyrelated disabilities alike. Young held that pregnant employee who seeks show disparate treatment such scenario may through the application the burden-shifting framework established McDonnell Douglas Corp. Green, 411 U.S. 792 (1973). See Young, 135 S.Ct. 1353 54. employer offers apparently legitimate reasons for failing accommodate pregnant employees, the plaintiff may assert that the proffered reasons are pretextual providing sufficient evidence that the employer policies impose significant burden pregnant workers, and that the employer legitimate, nondiscriminatory reasons are not sufficiently strong justify the burden, but rather when considered along Case: 14-13482 Date Filed: 09/15/2016 with the burden imposed give rise inference intentional discrimination. Id. 1354. For example, plaintiff may provide evidence that employer accommodates large percentage nonpregnant workers while failing accommodate large percentage pregnant workers. See id. 1354 55. The rationale and holding Young are based on, and therefore limited to, the language specific provision the PDA. Young not, the EEOC suggests, automatically transferable disparate treatment case under Title VII involving allegations intentional racial discrimination. Despite the textual differences between the Title VII disparate treatment provision issue here 2000e-2(a)(1)) and the PDA provision issue Young 2000e(k)), the EEOC argues that the following language from Young supports its use disparate impact concepts disparate treatment case: [D]isparate-treatment law normally permits employer implement policies that are not intended harm members protected class, even their implementation sometimes harms those members, long the employer has legitimate, nondiscriminatory, nonpretextual reason for doing so. 135 S.Ct. 1350 (internal citations omitted). The quoted passage, however, merely explains that disparate treatment liability attaches only when employer intentionally harms members protected group. summarizes the familiar framework courts use assess disparate treatment claims summary judgment, where direct proof intentional discrimination unavailable: the McDonnell Case: 14-13482 Date Filed: 09/15/2016 Douglas burden-shifting framework, which places the burden the employer articulate legitimate reason for taking adverse employment action once employee establishes prima facie case. not read the passage from Young the inverse stand for the proposition that employer neutral policy can engender disparate treatment liability merely because has unintended adverse effect members protected group. The crux the disparate treatment inquiry, and the question the McDonnell Douglas framework seeks answer, whether the employer intentionally discriminated against particular persons impermissible basis, not whether there was disparate impact protected group whole. allegation adverse consequences, without more, not sufficient state claim for disparate treatment. Cf. id. 1355 the continued focus whether the plaintiff has introduced sufficient evidence give rise inference intentional discrimination avoids confusing the disparate-treatment and disparateimpact doctrines The question disparate treatment case whether the protected trait actually motivated the employer decision. Raytheon, 540 U.S. (ellipses and internal quotation marks omitted). Generally speaking, [a] plaintiff can prove disparate treatment direct evidence that workplace policy, practice, Case: 14-13482 Date Filed: 09/15/2016 decision relies expressly protected characteristic, [circumstantial evidence] using the burden-shifting framework set forth McDonnell Douglas. Young, 135 S.Ct. 1345. See also Vessels Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 n.3 (11th Cir. 2005) (explaining that McDonnell Douglas not the exclusive means for showing intentional discrimination through circumstantial evidence). Title VII does not define the term race. And, the more than years since Title VII was enacted, the EEOC has not seen fit issue regulation defining the term. See EEOC Compliance Manual, 15-II, (2006) Title VII does not contain definition race, nor has the Commission adopted one. This appeal requires consider, least part, what race encompasses under Title VII because the EEOC maintains that individual expression tied protected trait, such race, discrimination based such expression violation the law. Br. EEOC 20. The meaning the word race Title VII is, like any other question statutory interpretation, question law for the court. Village Freeport Barrella, 814 F.3d 594, 607 (2d Cir. 2016). When words are not defined statute, they are interpreted taking their ordinary, contemporary, common meaning, Sandifer U.S. Steel Corp., 134 S.Ct. 870, 876 (2014) (citation and Case: 14-13482 Date Filed: 09/15/2016 internal quotation marks omitted), and one the ways figure out that meaning looking dictionaries existence around the time enactment. See, e.g., St. Francis College Al-Khazraji, 481 U.S. 604, 609 (1987) (consulting 19th century dictionaries determine the meaning race case arising under U.S.C. 1981, which became law 1866). the 1960s, today, race was complex concept that defied single definition. Take, for example, the following discussion leading 1961 dictionary: technical discriminations, all more less controversial and often lending themselves great popular misunderstanding misuse, RACE anthropological and ethnological force, usu[ally] implying physical type with certain underlying characteristics, particular color skin shape skull although sometimes, and most controversially, other presumed factors are chosen, such place origin common root language. WEBSTER THIRD NEW INTERNATIONAL DICTIONARY THE ENGLISH LANGUAGE 1870 (unabridged 1961). Nevertheless, most dictionaries that time tied race common physical characteristics traits existing through ancestry, descent, heredity. See id. (defining race the descendants common ancestor: family, tribe, people, nation belonging the same stock class kind individuals with common characteristics, interests, appearance, habits derived from Case: 14-13482 Date Filed: 09/15/2016 common ancestor, division mankind possessing traits that are transmissible descent and sufficient characterize distinct human type (Caucasian (Mongoloid DICTIONARY THE SOCIAL SCIENCES 569 (Julius Gould William Kolb eds. 1964) race subdivision species, individual members which display with some frequency number hereditary attributes that have become associated with one another some measure through considerable degree in-breeding among the ancestors the group during substantial part their recent evolution. DICTIONARY SOCIOLOGY 142 (G. Duncan Mitchell ed. 1968) Biologically speaking the concept race refers population sharing gene-pool giving rise characteristic distribution physical characteristics determined heredity. There are clear cut boundaries between racial groups thus defined and considerable variations may exhibited within races. One specialty dictionary, while defining race anthropological term denoting large group persons distinguished significant hereditary physical traits, cautioned that [a] common misconception that cultural traits sufficiently differentiate races. DICTIONARY POLITICAL SCIENCE 440 (Joseph Dunne ed. 1964). From the sources have been able review, appears more likely than not that race, matter language and usage, referred common physical characteristics shared group people and transmitted their ancestors over Case: 14-13482 time. Date Filed: 09/15/2016 Although the period dictionaries did not use the word immutable describe such common characteristics, not much linguistic stretch think that such characteristics are matter birth, and not culture. There little support for the position the EEOC that the 1964 Congress meant for Title VII protect individual expression tied protected race. Br. EEOC 20. Indeed, from legal standpoint, appears that race was then mostly understood terms inherited physical characteristics. See BLACK LAW DICTIONARY 1423 (4th ed. 1951) Race. ethnical stock; great division mankind having common certain distinguishing physical peculiarities constituting comprehensive class appearing derived from distinct primitive source. tribal national stock, division subdivision one the great racial stocks mankind distinguished minor peculiarities. Descent. (citing cases). may that today race recognized social construct, San Francisco Unified Sch. Dist., 147 F.3d 854, 863 (9th Cir. 1998), rather than absolute biological truth. See also Al-Khazraji, 481 U.S. 610 n.4 (noting that some, but not all, scientists have concluded that racial classifications are for the most part sociopolitical, rather than biological, nature THE AMERICAN HERITAGE DICTIONARY THE ENGLISH LANGUAGE 1441 (4th ed. 2009) (usage note for race The notion race nearly problematic from scientific point Case: 14-13482 Date Filed: 09/15/2016 view from social one. But our possible current reality does not tell what the country collective zeitgeist was when Congress enacted Title VII half century ago. That race essentially only very powerful idea and not all biological fact is, again, emerging contemporary understanding the meaning race. Rhonda Magee Andrews, The Third Reconstruction: Alternative Race Consciousness and Colorblindness Post-Slavery America, ALA. REV. 483, 515 (2003). assume, however, that the quest for the ordinary understanding race the 1960s does not have clear winner, then must look for answers elsewhere. Some cases from the former Fifth Circuit provide with binding guidance, giving some credence Felix Frankfurter adage that [n]o judge writes wholly clean slate. Walter Hamilton, Preview Justice, YALE note, some contemporary judicial decisions and dictionaries still provide understandings race tied biological and physical characteristics. See, e.g., Abdullahi Prada USA Corp., 520 F.3d 710, 712 (7th Cir. 2008) (Posner, J.) racial group the term generally used the United States today group having common ancestry and distinct physical traits. SHORTER OXFORD ENGLISH ICTIONARY 2445 (5th ed. 2002) (defining race part group set, esp. people, having common feature features, group living things connected common descent origin, [a]ny the major divisions humankind, having common distinct physical features ethnic background And the Geneva Convention Implementation Act 1987, legislation that post-dated Title VII about two decades, Congress defined the term racial group set individuals whose identity such distinctive terms physical characteristics biological descent. U.S.C. 1093(6). citing this provision, not mean suggest that the definition term one statute can automatically used when the same term undefined separate statute. merely point out that the late 1980s Congress still thought race, least one context, including common physical characteristics. Case: 14-13482 Date Filed: 09/15/2016 L.J. 819, 821 (1939) (quoting FELIX FRANKFURTER, THE COMMERCE CLAUSE UNDER MARSHALL, TANEY, AND WAITE (1937)). explain below, those cases teach that Title VII protects against discrimination based immutable characteristics. Willingham Macon Tel. Publ Co., 507 F.2d 1084 (5th Cir. 1975) (en banc), addressed Title VII sex discrimination claim male job applicant who was denied position because his hair was too long. Although the employer interpreted its neutral dress/grooming policy prohibit the wearing long hair only men, and although the plaintiff argued that was the victim sexual stereotyping (i.e., the view that only women should have long hair), affirmed the grant summary judgment favor the employer. See id. 1092 93. held Willingham that [e]qual employment opportunity, which was the purpose Title VII, may secured only when employers are barred from discriminating against employees the basis immutable characteristics, such race and national origin. Similarly, employer cannot have one hiring policy for men and another for women the distinction based some fundamental right. But hiring policy that distinguishes some other ground, such grooming length hair, related more closely the employer choice how run his business than equality employment opportunity. Id. 1091. adopt[ed] the view that distinctions employment practices between men and women Case: 14-13482 Date Filed: 09/15/2016 the basis something other than immutable protected characteristics not inhibit employment opportunity violation [Title VII]. Id. 1092. And approved the district court alternative ground for affirming the grant summary judgment favor the employer that because grooming and hair standards were also imposed female employees, men and women were treated equally. See id. closing, reiterated that [p]rivate employers are prohibited from using different hiring policies for men and women only when the distinctions used relate immutable characteristics legally protected rights. Id. Willingham involved hair length the context sex discrimination claim, but Garcia Gloor, 618 F.2d 264 (5th Cir. 1980), applied the immutable characteristic limitation national origin, another Title VII protected categories. Garcia bilingual Mexican-American employee who worked salesperson was fired for speaking Spanish co-worker the job violation his employer English-only policy, and alleged that his termination was based his national origin violation Title VII (which referred the EEO Act affirmed the district court judgment favor the employer following bench trial. noted that expert witness called the employee had testified that the Spanish language the most important aspect ethnic several occasions have reaffirmed the central holding Willingham that Title VII protects against discrimination based immutable characteristics, i.e., those that employee born with cannot change. See, e.g., Harper Blockbuster Entm Corp., 139 F.3d 1385, 1389 (11th Cir. 1998); Gilchrist Bolger, 733 F.2d 1551, 1553 (11th Cir. 1984). Case: 14-13482 Date Filed: 09/15/2016 identification for Mexican-Americans, and them what skin color others, and that testimony formed part the basis for the claim that the employer policy was unlawful. See id. 267. Although the district court had found that there were other reasons for the employee dismissal, assumed that the use Spanish was significant factor the employer decision. See id. 268. explained that neither Title VII nor common understanding equates national origin with the language that one chooses speak, and noted that the English-only rule was not applied the employee covert basis for national origin discrimination. Id. Though the employee argued that was discriminated against the basis national origin because national origin influences determines his language preference, were unpersuaded because the employee was bilingual and was allowed speak Spanish during breaks. Id. And even the employer had genuine business need for the English-only policy, said that [n]ational origin must not confused with ethnic sociocultural traits unrelated status, such citizenship alienage. Id. 269. Citing Willingham, emphasized that Title VII focuses its laser prohibition discriminatory acts based matters that are either beyond the victim power alter, that impose burden employee one the prohibited bases. Id. Case: 14-13482 Date Filed: 09/15/2016 The employee Garcia also argued that the employer English-only policy was discriminatory impact, even that result was not intentional, because was likely violated only Hispanic-Americans and that, therefore, they ha[d] higher risk incurring penalties. Id. 270. rejected this argument well because there disparate impact the rule one that the affected employee can readily observe and nonobservance matter individual preference, and Title VII does not support interpretation that equates the language employee prefers use with his national origin. Id. What take away from Willingham and Garcia that, general matter, Title VII protects persons covered categories with respect their immutable characteristics, but not their cultural practices. See Willingham, 507 F.2d 1092; Garcia, 618 F.2d 269. And although these two decisions have been criticized some, see, e.g., Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination Proxy and the Future Title VII, N.Y.U. REV. 1134, 1213 (2004), are not free, later panel, discard the immutable/mutable distinction they set out. See Cohen Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2000) [T]he prior panel precedent rule not dependent upon subsequent panel appraisal the initial decision correctness. Nor the application the rule dependent upon the skill the attorneys Case: 14-13482 Date Filed: 09/15/2016 wisdom the judges involved the prior decision upon what was argued considered. recognize that the distinction between immutable and mutable characteristics race can sometimes fine (and difficult) one, but line that courts have drawn. So, for example, discrimination the basis black hair texture (an immutable characteristic) prohibited Title VII, while adverse action the basis black hairstyle mutable choice) not. Compare, e.g., Jenkins Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 168 (7th Cir. 1976) (en banc) (recognizing claim for racial discrimination based the plaintiff allegation that she was denied promotion because she wore her hair natural Afro), with, e.g., Rogers Am. Airlines, Inc., 527 Supp. 229, 232 (S.D.N.Y. 1981) (holding that grooming policy prohibiting all-braided hairstyle did not constitute racial discrimination, and distinguishing policies that prohibit Afros, because braids are not immutable characteristic but rather the product artifice one commentator has put it, the concept immutability, though not perfect, provides rationale for the protected categories encompassed within the antidiscrimination statutes. Sharona Hoffman, The Importance Immutability Employment Discrimination Law, WM. MARY REV. 1483, 1514 (2011). Case: 14-13482 Date Filed: 09/15/2016 Critically, the EEOC proposed amended complaint did not allege that dreadlocks themselves are immutable characteristic black persons, and fact stated that black persons choose wear dreadlocks because that hairstyle historically, physiologically, and culturally associated with their race. That dreadlocks are natural outgrowth the texture black hair does not make them immutable characteristic race. Under Willingham and Garcia, the EEOC failed state plausible claim that CMS intentionally discriminated against Ms. Jones the basis her race asking her cut her dreadlocks pursuant its race-neutral grooming policy. The EEOC allegations individually collectively not suggest that CMS used that policy proxy for intentional racial discrimination. The EEOC admitted its proposed amended complaint that CMS grooming policy race-neutral, but claimed that prohibition dreadlocks the workplace constitutes race discrimination because dreadlocks are racial characteristic, i.e., they are manner wearing the hair that physiologically and culturally associated with people African descent. So, noted earlier, the The EEOC did assert that dreadlocks are immutable characteristic black persons, but made that assertion (which conflicted with what the proposed amended complaint alleged) only its motion for leave amend. See D.E. not consider this assertion, for facts contained motion brief cannot substitute for missing allegations the complaint. Kedzierski Kedzierski, 899 F.2d 681, 684 (7th Cir. 1990). Accord Associated Press All Headline News Corp., 608 Supp. 454, 464 (S.D.N.Y. 2009) Conclusory assertions memorandum law are not substitute for plausible allegations complaint. Case: 14-13482 Date Filed: 09/15/2016 claim that CMS intentionally discriminated against Ms. Jones the basis her race depends the EEOC conception what race means (and how far extends) under Title VII. See Br. EEOC the Title VII context, the individual expression tied protected race, discrimination based such expression violation the law. support its interpretation Title VII, the EEOC relies its own Compliance Manual. See EEOC Compliance Manual, 15-II, (2006) Title VII prohibits employment discrimination against person because cultural characteristics often linked race ethnicity, such person name, cultural dress and grooming practices, accent manner speech. But even could ignore Willingham and Garcia, the Compliance Manual does not save the day for the EEOC. [T]he rulings, interpretations, and opinions agency charged with enforcing particular statute, while not controlling upon the courts reason their authority, constitute body experience and informed judgment which courts and litigants may properly resort for guidance. Skidmore Swift Co., 323 U.S. 134, 140 (1944). The Compliance Manual, therefore, entitled deference only the extent that [it has] the power persuade. Christensen Harris Cty., 529 U.S. 576, 587 (2000) (citation and internal quotation marks omitted). Factors relevant determining the persuasiveness the Compliance Case: 14-13482 Date Filed: 09/15/2016 Manual, and thus the weight given the EEOC guidance, include the thoroughness evident its consideration, the validity its reasoning, [and] its consistency with earlier and later pronouncements[.] Skidmore, 323 U.S. 140. The Compliance Manual contravenes the position the EEOC took administrative appeal less than decade ago. See Thomas Chertoff, Appeal No. 0120083515, 2008 4773208, (E.E.O.C. Office Federal Operations Oct. 24, 2008) (concluding, line with federal cases like Willingham, that grooming policy interpreted prohibit dreadlocks and similar hairstyles lies outside the scope federal employment discrimination statutes, even when the prohibition targets hairstyles generally associated with particular race Because the EEOC has not provided reasoned justification for changing course the Compliance Manual, and has opted not address Thomas its reply brief, choose not give its guidance much deference weight determining the scope Title VII prohibition racial discrimination. See, e.g., Young, 135 S.Ct. 1352 (declining rely significantly the EEOC Compliance Manual because its guidelines were promulgated recently, took position about which the EEOC previous guidelines were silent, and contradicted positions the EEOC had previously taken). The Compliance Manual also runs headlong into wall contrary caselaw. the words leading treatise, [c]ourts generally have upheld facially neutral Case: 14-13482 Date Filed: 09/15/2016 policies regarding mutable characteristics, such facial hair, despite claims that the policy has adverse impact members particular race infringes the expression cultural pride and identification. BARBARA LINDEMANN PAUL GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 6-5 (5th ed. 2012). far can tell, every court have considered the issue has rejected the argument that Title VII protects hairstyles culturally associated with race. See Cooper Am. Airlines, Inc., 149 F.3d 1167, 1998 276235, (4th Cir. May 26, 1998) (upholding district court 12(b)(6) dismissal claims based grooming policy requiring that braided hairstyles secured the head the nape the neck); Campbell Alabama Dep Corr., No. 2:13-CV-00106-RDP, 2013 2248086, (N.D. Ala. May 20, 2013) dreadlock hairstyle, like hair length, not immutable characteristic. Pitts Wild Adventures, Inc., No. CIV.A.7:06-CV-62-HL, 2008 1899306, (M.D. Ga. Apr. 25, 2008) (holding that grooming policy which prohibited dreadlocks and cornrows was outside the scope federal employment discrimination statutes because did not discriminate the basis immutable characteristics); Eatman United Parcel Serv., 194 Supp. 256, 259 (S.D.N.Y. 2002) (holding that employer policy prohibiting unconventional hairstyles, including dreadlocks, braids, and cornrows, was not racially discriminatory violation Title VII); McBride Lawstaf, Inc., No. CIV. A.1:96-CV-0196C, 1996 755779, (N.D. Ga. Case: 14-13482 Date Filed: 09/15/2016 Sept. 19, 1996) (holding that grooming policy prohibiting braided hairstyles does not violate Title VII); Rogers, 527 Supp. 232 (holding that grooming policy prohibiting all-braided hairstyle did not constitute racial discrimination, and distinguishing policies that prohibit Afros, because braids are not immutable characteristic but rather the product artifice Carswell Peachford Hosp., No. C80-222A, 1981 224, (N.D. Ga. May 26, 1981) There evidence, and this court cannot conclude, that the wearing beads one hair immutable characteristic, such national origin, race, sex. Further, this court cannot conclude that the prohibition beads the hair employer subterfuge for discrimination. Wofford Safeway Stores, Inc., F.R.D. 460, 470 (N.D. Cal. 1978) (explaining that the even-handed application reasonable grooming regulations has uniformly been held not constitute discrimination the basis race (internal citations omitted); Thomas Firestone Tire Rubber Co., 392 Supp. 373, 375 (N.D. Tex. 1975) (holding that grooming policy regulating hair length and facial hair, which was applied even-handedly employees all races, did not violate Title VII U.S.C. 1981). See also Brown D.C. Transit System, 523 F.2d 725, 726 (D.C. Cir. 1975) (rejecting claim black male employees that race-neutral grooming regulation, which prohibited most facial hair, violated Title VII despite contention employees that the Case: 14-13482 Date Filed: 09/15/2016 regulation was extreme and gross suppression them black men and (was) badge slavery depriving them their racial identity and virility would remiss did not acknowledge that, the last several decades, there have been some calls for courts interpret Title VII more expansively eliminating the biological conception race and encompassing cultural characteristics associated with race. But even those calling for such interpretive change have different visions (however subtle) about how race should defined. Compare, e.g., Ian Haney Lopez, The Social Construction Race: Some Observations Illusion, Fabrication, and Choice, HARV. C.R.C.L. REV. (1994) (defining race vast group people loosely bound together historically contingent, socially significant elements their morphology and/or ancestry and Rich, Performing Racial and Ethnic Identity, N.Y.U. REV. 1142 There urgent need redefine Title VII definition race and ethnicity include both biological, visible racial/ethnic features and performed features associated with racial and ethnic identity. with, e.g., Wendy Greene, Title VII: What Hair (and Other Race-Based Characteristics) Got With It?, COLO. REV. 1355, 1385 (2008) Race includes physical appearances and behaviors that society, historically and presently, commonly associates with particular racial group, even when the Case: 14-13482 Date Filed: 09/15/2016 physical appearances and behavior are not uniquely exclusively performed by, attributed particular racial group. and Barbara Flagg, Fashioning Title VII Remedy for Transparently White Subjective Decisionmaking, 104 YALE 2009, 2012 (1995) (suggesting that discrimination the basis race might include personal characteristics that intersect seamlessly with [one racial] self-definition Yet the call for interpreting race including culture has not been unanimous. This part because culture itself (or can be) very broad and ever-changing concept. See, e.g., Richard Ford, Race Culture: Why Not?, U.C.L.A. REV. 1803, 1813 (2000) Culture much more problematic category for legal intervention than race, because culture broad sense encompasses almost any possible motivation for human behavior. Cf. Annelise Riles, Cultural Conflicts, CONTEMP. PROBS. 273, 285 (2008) [C]ultures are hybrid, overlapping, and creole: forces from trade education migration popular culture and transnational law ensure that all persons participate multiple cultures once. Cultural elements circulate globally, and they are always changing. From this point view, culture more constant act translation and re-creation re-presentation than fixed and given thing. Assuming that general definitional consensus could achieved among those who advocate the inclusion culture within the meaning race, and that Case: 14-13482 Date Filed: 09/15/2016 courts were willing adopt such shared understanding Title VII, that would only the beginning difficult interpretive battle, and there would other very thorny issues confront, such which cultural characteristics traits protect. See, e.g., Kenji Yoshino, Covering, 111 YALE 769, 893 (2002) Even [in] culture-race analysis one must still ask whether covering demands pertaining grooming are sufficiently constitutive race violate bans race discrimination. There would also the related question whether cultural characteristics traits associated with one racial group can absorbed transferred members different racial group. oral argument, for example, the EEOC asserted that white person chose wear dreadlocks sign racial support for her black colleagues, and the employer applied its dreadlocks ban that person, she too could assert race-based disparate treatment claim. The resolution these issues, moreover, could itself problematic. See Ford, Race Culture, U.C.L.A. REV. 1811 (explaining that recognizing right cultural protection under the ambit race would require courts determine which expressions are authentic and therefore deserving protection, and the result will often discredit anyone who does not fit the culture style ascribed her racial group Even courts prove sympathetic the race culture argument, and are somehow freed from current precedent, how are they Case: 14-13482 Date Filed: 09/15/2016 choose among the competing definitions race How are they (and employers, for that matter) know what cultural practices are associated with particular race And cultural characteristics and practices are included part race, there principled way figure out which ones can excluded from Title VII protection? cannot, and should not, forget that and courts generally are tasked with interpreting Title VII, statute enacted Congress, and not with grading competing doctoral theses anthropology sociology. Along these lines, consider the critique Richard Ford the attempt have Title VII protect cultural characteristics traits associated with race: Once status ascribed, immutable the pragmatic sense that the individual cannot readily alter it. This the sense which immutability relevant anti-discrimination law. The mutability racial characteristic then, strictly speaking, irrelevant, but not because difference discourse would have anti-discrimination law should prohibit discrimination based mutable well immutable racial characteristics, but rather because racial characteristics generally are irrelevant. And quite right say that anti-discrimination law prohibits discrimination the basis immutable characteristics. But does not follow that the immutable characteristics question are characteristics race; instead they are any characteristic potential plaintiffs that may proxies for racial status. This cuts against some common locutions that the law prohibits discrimination against racial groups; that Case: 14-13482 Date Filed: 09/15/2016 prohibits discrimination the basis racial characteristics; that protects racial minorities; worst all that protects race. formulation does none these. Indeed could not these things because them would first require definition racial group, racial characteristic, and/or race none which courts have readily [at] hand. Instead, law prohibits discrimination the basis race something can without knowing what race and indeed without accepting that race something that knowable. prohibit discrimination the basis race, need only know that there set ideas about race that many people accept and decide prohibit them from acting the basis these ideas. Richard Ford, RACIAL CULTURE: CRITIQUE 103 (2005). Our point not take stand any side this debate are, after all, bound Willingham and Garcia but rather suggest that, given the role and complexity race our society, and the many different voices the discussion, may not bad idea try resolve through the democratic process what race means (or should mean) Title VII. Cf. Juan Perea, Ethnicity and Prejudice: Reevaluating National Origin Discrimination under Title VII, WM. MARY REV. 805, 861 (1994) (proposing that Congress amend Title VII protect against discrimination based ethnic traits). Religion is, course, different from race many ways, but bears noting that Congress amended Title VII 1972 expand protection for religious observance and practice. See U.S.C. 2000e(j); E.E.O.C. Abercrombie Fitch Stores, Inc., 135 S.Ct. 2028, 2034 (2015). has not, however, prohibited discrimination the basis cultural practices associated with race. Case: 14-13482 Date Filed: 09/15/2016 Ms. Jones told CMS that she would not cut her dreadlocks order secure job, and respect that intensely personal decision and all entails. But, for the reasons have set out, the EEOC original and proposed amended complaint did not state plausible claim that CMS intentionally discriminated against Ms. Jones because her race. The district court therefore did not err dismissing the original complaint and concluding that the proposed amended complaint was futile. AFFIRMED.