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Case: 14-13482
Date Filed: 09/15/2016
No. 14-13482
D.C. Docket No. 1:13-cv-00476-CB-M
Plaintiff Appellant,
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
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Chastity Jones, black job applicant whose offer employment was rescinded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
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
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
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
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
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
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
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
Take, for example, the following discussion leading 1961
dictionary: technical discriminations, all more less controversial and often
lending themselves great popular misunderstanding misuse,
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
ENGLISH LANGUAGE 1870 (unabridged
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
(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
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
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
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
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.
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.
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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
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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
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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.
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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
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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
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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]
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
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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
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
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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
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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
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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