Another hair piece: Exploring new strands of analysis under title VII

Georgetown Law Journal

Volumn 98, Issue 4, 2010, Pages 1079-1131

  Onwuachi Willig, Angela ^a  

^a UNIVERSITY OF IOWA   (United States)

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EID: 77954038802     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (498)

1. Braids are a hairstyle that consists of sections of hair where three segments of each section are repeatedly twisted over each other until their very ends. See Zondra Hughes, The Explosion of Braids, Locks, and Twists, EBONY, Sept. 2002, at 108 (discussing the variety of braided hairstyles used by professional black women).
2. Cornrows are a type of braided hairstyle where the hair is braided onto the scalp in rows, usually all the way down to the nape of the neck and then hanging down from there. See Anita M. Samuels, Rediscovered Cornrows, N.Y TIMES, Jul. 30, 1995, §1, at 40.
3. Cornrows are relatively inexpensive hairstyles. As one article stated, they can cost "$10 to $35 a head at the Nubian salon, $10 to $15 if a homegirl does it." Id.
4. Locks consist of sections of hair that are "permanently locked together and cannot be unlocked without cutting." Shauntae Brown White, Releasing the Pursuit of Bouncin'andBehavin'Hair: Natural Hair as an Afrocentric Feminist Aesthetic for Beauty, 1 INT'L J. MEDIA & CULTURAL POL. 295, 296 n.3 (2005);
5. see also Angela Onwuachi-Willig, Undercover Other, 94 CAL. L. REV. 873, 873 n.3 (2006) (defining locks);
6. Samuels, supra note 1, at 40 (defining locks as "allowing the hair to mat").
7. According to White; the term "loc" or "lock" is preferred to the term "dreadlock," as "the term dreadful was used by English slave traders to refer to Africans' hair, which had probably loc'd naturally on its own during the Middle Passage." White, supra, at 296 n.3.
8. Twists are a hairstyle similar to regular braids. However, braids consist of three segments of hair that are repeatedly twisted over each other until their very ends, while twists are made by twisting two segments of hair over each other repeatedly until their ends. See Hughes, supra note 1.
9. Although the undue burden test examines the effects of a policy on different groups and is, at times, referred to as a disparate impact test it is a means for determining disparate treatment not disparate impact- at least as disparate impact is traditionally understood. In order to assert a valid disparate treatment claim based upon a grooming or dress code under Title VII, a plaintiff must make out a prima facie case establishing that the challenged employment action was either intentionally discriminatory or that it had a discriminatory effect on the basis of a protected category. McDonnell Douglas Corp. v. Green, 411 U.S. 792,802 (1973);
10. Jespersen v. Harrah's Operating Co., 444 F.3d 1104, 1108-09 (9th Cir. 2006) (en banc);
11. Harriss v. Pan Am. World Airways, 649 F.2d 670, 673 (9th Cir. 1980).
12. "An appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment." Frank v. United Airlines, 216 F.3d 845, 854 (9th Cir. 2000).
13. Once a plaintiff establishes such a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its action. McDonnell, 411 U.S. at 802.
14. In a grooming code case with different requirements for different groups, an employer can justify its requirements only by showing that they are bona fide occupational qualifications (BFOQ). Jespersen, 444 F.3d at 1109 n.1 (citing 42 U.S.C. §2000e-2).
15. A BFOQ is a qualification that is reasonably necessary to the normal operation or essence of an employer's business. See id.;
16. see also ROBERT C POST, PREJUDICIAL APPEARANCES: THE LOGIC OF AMERICAN ANTIDISCRIMINATION LAW 17-18 (2001).
17. However, a BFOQ cannot be used as a defense in cases involving racial discrimination. See 110 CONG. REC 2550 (1964) (expressly rejecting race as a BFOQ under Title VII).
18. See, e.g., Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1389 (11th Cir. 1998) (asserting that by "longstanding" and "binding precedent" grooming policies that treat men and women differently are not viewed as discriminatory);
19. Willingham v. Macon Tel. Publ'g. Co., 507 F.2d 1084, 1091 (5th Cir. 1975) (holding that grooming standards that approve different hair lengths for men and women do not violate Title VII);
20. Baker v. Cal. Land Title Co., 507 F.2d 895, 898 (9th Cir. 1974) ("We agree with the district court that a private employer may require male employees to adhere to different modes of dress and grooming than those required of female employees and such does not constitute an unfair employment practice within the meaning of [Title VII].");
21. see also POST, supra note 4, at 43-44;
22. Katharine T. Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Workplace Equality, 92 MICH. L. REV. 2541,2559-65 (1994) (noting that courts have held that the regulation of appearance traits like "beards" and "bust size" is discrimination based upon the trait rather than the sex that closely correlates with that trait).
23. In her article, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, Professor Kimberlé Crenshaw introduced the concept of intersectionality, which explains how race and gender can interact to shape the multiple dimensions of black women's experiences in the workplace. Crenshaw explained the way in which black women may face unique forms of discrimination that differ from the discrimination faced by black men or white women; in this sense, she proclaimed, black women may encounter discrimination in contexts where neither black men nor white women would.
24. Id.
25. See Ashleigh Shelby Rosette & Tracy L. Dumas, The Hair Dilemma: Conform to Mainstream Expectations or Emphasize Racial Identity, 14 DUKE J. GENDER L. & POL'Y 407,410 (2007) (noting the freedom afforded to most white females outside of the military context to style their hair based on "personal preferences").
26. There is a small percentage of black women whose hair texture and structure are like those of most white women- naturally straight and thin. An oveiwhelming majority of black women, however, have tightly coiled hair that grows into an Afro, not down, when grown long. See id at 411 ("The natural hair texture of most Black women is kinky, wooly, or tightly curled."). In this Essay, when I refer to "black hair" or "black women's hair," I am referring to the hair texture and structure that belongs to the vast majority of black women. Likewise, there are white women who have "curly" hair; it is important to note, however, that the hair texture and structure for nearly all, if not all, of these women differ greatly from those of black women. For example, when grown long, the hair of nearly all white women with curly hair grows down, even if puffy, and not up into an Afro. Additionally, even if an Afro of sorts grows, the structure of these white women's hair generally is not tightly coiled and kinky.
27. See infra section II.A.
28. We are now leaving the alternate universe. On her blog "Alienated Conclusions," one black female writer modeled a post after Gloria Steinem's essay "If Men Could Menstruate" to write "'If' Black Women Were White Women." With regard to hair, she wrote in relevant part: Straight blond hair would be considered "wild and unruly" because when the wind blew, it did not stay in place. Women with naturally straight hair would hide their "unruly" and "wild" stick-straight hair in public. The desire for "lightweight hair" that defied gravity would permanently end the use of blow dryers. Keeping one's natural blond hair wild and straight would become indicative of a political statement. Alienated Conclusions, http7/nerdsevolvmg.blogspotcom/2009/08/what-black-women-were-white-women. html (Aug. 23,2009,22:00 EST).
29. See, e.g., Rogers v. Am. Airlines, 527 F. Supp. 229,232 (S.D.N.Y 1981) (upholding a policy that banned braided hairstyles);
30. see also Pitts v. Wild Adventures, Inc., No. 7:06-CV-62-HL, 2008 WL 1899306, at *6 (M.D. Ga. Apr. 25, 2008);
31. McBride v. Lawstaf, Inc., No. 1:96-cv-0196-cc, 1996 WL 755779, at *2-3 (N.D. Ga. Sept 19, 1996);
32. Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365 (describing how Cheryl Tatum, a black woman who wore her hair in a pageboy style of tiny braids, was fired from her job as a restaurant cashier at the Hyatt because her style was determined to violate the employer's policy against "extreme and unusual hairstyles");
33. Teressa Gubbins, The Debate: Uniformity vs. Diversity, DALLAS MORNING NEWS, Jan. 29, 2002, at 1C (noting that Officer Gina Mosley was fired for refusing to cut her locks). Grace Salvant, a college student, was initially denied the opportunity to return to her former job at Ruby Tuesday because of her braids, even though the company had previously allowed women to wear braids at work. Salvant explained that "she wears braids 90% of the time because of the convenience and that she has never chemically treated her hair."
34. Hazel Trice Edney, Howard Student Knocks Out Restaurant Hair Policy, DISTRICT CHRON. (Wash., D.C.), Mar. 3, 2008, available at http://media.www. districteruomcles.com/mecUa/storage/paper263/news/2008/03/03/Cover/Howard. Smdent.Knocks.Out http://districteruomcles.com/media/storage/paper263/news/2008/ 03/03/Cover/Howard.Smdent.Knocks.Out. Restaurant.Hair.Policy-3247838.shtml (describing how protest led to a repeal of a no-braids policy, but noting that the employer Ruby Tuesday maintains its policy against locks and describing the interaction of one employee who was asked to remove her twists).
35. Wendi Hathorn, another college student complied with a request to remove her twists before she was hired, but explained her reasons for desiring twists as a natural hairstyle: "I wasn't happy with having to take my hair out because my hair is natural and I didn't want to straighten it every day before I go to work." Id.
36. See Rosette & Dumas, supra note 7, at 410 ("[L]ong straight hair has generally been considered the gold standard for attractiveness.");
37. Rose Weitz, Women and Their Hair: Seeking Power Through Resistance and Accommodation, 15 GENDER & SOC'Y 667,672 (2001) ("[C]ertain ideas about attractiveness and female hair appear deeply and widely embedded in American society. First to be most feminine and hence most attractive, women's hair should be long.");
38. White, supra note 2, at 297-98 ("While long hair, as Brownmiller argues, has been used as a measure of femininity for white American women, African American women have been subjected to that same measurement. In addition, the measurement of beauty and femininity is taken one step further in that an African American woman's hair is more valued not only if it is long, but also if it is straight. While American women have been subjected to a standard of beauty the average woman might find difficult to attain, the African American woman is doubly subjected in that the standards were not even created for her.");
39. see also infra section D.A and Part IV.
40. See infra section IV.B.
41. Jespersen v. Harrah's Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc).
42. Id. at 1106-1107
43. Id. at 1107.
44. Id. at 1108.
45. Jespersen "found the makeup requirement offensive, and felt so uncomfortable wearing makeup that she found it interfered with her ability to perform as a bartender."
46. Id Darlene Jespersen left her job, but the Ninth Circuit acknowledged that she was "effectively terminated'' for refusing to comply with Harrah's make up requirement.
47. Id. at 1105,1108.
48. Id. at 1108-1109
49. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
50. Jespersen, 444 F.3d at 1108-09;
51. Harriss v. Pan Am. World Airways, 649 F.2d 670, 673 (9th Cir. 1980).
52. Frank v. United Airlines, 216 F.3d 845,854 (9th Cir. 2000).
53. Jespersen, 444 F.3d at 1109.
54. Id. at 1112.
55. For example, in 2007, the Duke Journal of Gender Law & Policy hosted a symposium entitled "Makeup, Identity Performance & Discrimination" that focused almost entirely on Jespersen.
56. See 14 DUKE J. GENDER L. & POL'Y 1 (2007).
57. See, e.g., Dianne Avery, The Great American Makeover: The Sexing Up and Dumbing Down of Women's Work After Jespersen v. Harrah's Operating Company, Inc., 42 U.S.F. L. REV. 299, 300-01 (2007) (critiquing the Jespersen court's reading of Title VII and its likely impact on the "commercialization of women's sexuality");
58. Devon W Carbado, G. Mitu Gulati & Gowri Ramachandran, The Jespersen Story: Makeup and Women at Work, in EMPLOYMENT DISCRIMINATION STORIES 105, 116-18, 132-48 (Joel Wm. Friedman ed., 2006) (arguing that "Jespersen misunderstands the nature of contemporary sex discrimination");
59. Deborah L. Rhode, The Injustice of Appearance, 61 STAN. L. REV. 1033, 1057-58 (2009) (critiquing Jespersen in the context of gender subordination and self-expression);
60. Michael Selmi, The Many Faces of Darlene Jespersen, 14 DUKE J. GENDER L. & POL'Y 467, 468, 479-90 (2007) (discussing the implications of Jespersen for sex-stereotyping law and workplace identity);
61. see also Tristin K. Green, Discomfort at Work- Workplace Assimilation Demands and the Contact Hypothesis, 86 N.C. L. REV. 379, 396-400 (2008) (describing scholarship on "workplace assimilation'').
62. See Jespersen, 444 F.3d at 1107.
63. A hot comb is a metal comb that is heated on a stovetop and used to straighten hair. It is also known as a pressing comb or straightening comb.
64. Relaxers are the chemicals used to straighten tightly coiled hair, usually of people of African descent Madame C.J. Walker created the first hair-straightening process for black women. The first black-female, self-made millionaire, she "achieved her wealth through a hair straightening empire in the early twentieth century."
65. Monica Bell, Comment The Braiding Cases, Cultural Deference, and the Inadequate Protection of Black Women Consumers, 19 YALE J.L. & FEMINISM 125, 133-34 (2007);
66. see also Tracey Owens Patton, Hey Girl, Am I More Than My Hair?: African American Women and Their Struggles with Beauty, Body Image, and Hair, NWSA J., Summer 2006, at 24, 29 ("In the twentieth century, the 1905 invention of Madame C.J. Walker's hair softener, which accompanied a hairstraightening comb, was the rage.").
67. See Rhode, supra note 23, at 1057;
68. see also Jespersen, 444 F.3d at 1107.
69. See infra Part IV. We do not know if Harrah's banned braids, locks, or twists on the ground that they were not "professional" or were "extreme" hairstyles. In a number of instances where employers have prohibited black females from wearing natural hairstyles, however, the bans were not explicit. Instead, the employer codes simply prohibited "extreme," "unconventional," or "eye catching" hairstyles, and supervisors, with the backing of their employers, identified black women's natural hairstyles as violations of their workplace policies.
70. See, e.g., Hollins v. Atl. Co., 188 F.3d 652,655 (6th Cir. 1999) (reprimanding a black female employee for an "eye catching" and "too different" hairstyle);
71. Caldwell, supra note 10, at 367;
72. see also Eatman v. United Parcel Serv., 194 F. Supp. 2d 256, 259 (S.D.N.Y 2002) (involving the claim of a black man whose dreadlocks were deemed "unconventional").
73. See Ian F. Haney López, Post-racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama, 98 CAL. L. REV. (forthcoming June 2010), available at http://ssrn.com/abstract-1418212(describing others' understanding of a "post-racial" society as consisting of "the seeming evaporation of race as a basis for social ordering").
74. Throughout this Essay, the words "Black" and "White" are capitalized when used as nouns to describe a racialized group; however, these terms are not capitalized when used as adjectives. Also, the term "Blacks" is used instead of the term "African Americans" because the term "Blacks" is more inclusive.
75. See Why "Black" and Not "African-American"?, J. BLACKS HIGHER EDUC., Spring 2004, at 18, 18-19. Additionally, "[i]t is more convenient to invoke the terminological differentiation between black and white than say, between African-American and Northern European-American, which would be necessary to maintain semantic symmetry between the two typologies."
76. Alex M. Johnson, Jr., Defending the Use of Quotas in Affirmative Action: Attacking Racism in the Nineties, 1992 U. ILL. L. REV. 1043,1044 n.4.
77. Natural hair is "[h]air that is not chemically altered or straightened by the pressing comb." INGRID BANKS, HAIR MATTERS: BEAUTY, POWER, AND BLACK WOMEN'S CONSOOUSNESS 172 (2000);
78. accord White, supra note 2, at 295-96 n.2 ("Natural hair is hair that has not been altered by chemicals and can be tightly coiled (or kinky) as well as straight.");
79. see also Bell, supra note 26, at 132-133 (noting that natural hairstyles are also referred to as "traditional hairstyles"). Natural hairstyles are those hairstyles that allow black women to keep their hair in its natural structure and texture or allow black women to avoid further chemical and heat processing of their hair.
80. See supra note 6.
81. See Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 166-67 (7th Cir. 1976) (recognizing a valid Title Vll claim where plaintiff alleged that her employer fired her because of her Afro hairstyle);
82. -4 Fair Empl. Prac. Cas. (BNA) 18 (June 10, 1971) (finding that an employer's line-ofsight grooming policy adversely affected black employees who naturally have a different hair texture than white employees);
83. see also Rogers v. Am. Airlines, 527 F. Supp. 229, 232 (S.D.N.Y 1981) (asserting that a code that prohibits "the 'Afro/bush' style might offend Title VII'). Even the Afro, however, is not fully protected. Many employers allow only short Afros.
84. See, e.g., Tania Padgett, Ethnic Hairstyles in Corporate Life, NEWSDAY (Melville, N. Y.), Nov. 25, 2007, available at 2007 WLNR 23314578 (quoting one business owner as saying "that outside of short-cropped Afros, most ethnic hairstyles are a 'no-no' in his office"). In other words, in some workplaces, black women are not allowed to grow their natural hair beyond a prescribed length, while white women are allowed to grow their natural hair without limitation.
85. Although intuition and common sense suggest that black women suffer disparate effects from bans on natural hairstyles such as braids, locks, and twists, I do not focus my analysis on the potential for a successful disparate impact claim for several reasons. First no black woman has ever filed (although a black man has) a traditional disparate impact claim based upon natural hairstyle restrictionsone that accepts the grooming requirements as facially neutral. Second, disparate impact theory is viewed as a weak tool for combating discrimination by plaintiffs' attorneys.
86. See Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CAL. L. REV. 1, 13-14 (2006) (arguing that the focus of disparate impact doctrine on "discrete decisions] (to hire, to fire, to promote). make[s] it a poor tool for addressing discrimination that does its work through an accumulation of small, repeated instances of biased perception and evaluation");
87. Tristin K. Green, Work Culture and Discrimination, 93 CAL. L. REV. 623,654-58 (2005) (explaining how the disparate impact theory "falls short" in "addressing work culture as a source of discrimination" );
88. Michael Selmi, Was the Disparate Impact Theory a Mistake?, 53 UCLA L. REV. 701, 738-53 (2006) (arguing that disparate impact theory has proven useful in only a limited group of testing cases).
89. But see Charles A. Sullivan, Disparate Impact: Looking Past the Desert Palace Mirage, 47 WM. & MARY L. REV. 911, 984-1000 (2005) (arguing for the revival of disparate impact theory as a litigation tool). Third, part of my goal in addressing disparate treatment claims is to expose the invisible raced and gendered norms behind employer appearance codes regarding hair- to expose the policies as lacking in neutrality. Disparate impact theory, however, applies where a policy is facially neutral.
90. See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 & n.15 (1977). Fourth, despite extensive searches, I have been unable to collect data regarding the percentages of black women and white women who have tightly coiled hair as opposed to straight hair. This lack of statistics regarding the hair types of black women and non-black women makes it difficult to address disparate impact claims on a broader, more general level. For detailed analyses of disparate impact theory,
91. see Robert Belton, Title VII at Forty: A Brief Look at the Birth, Death, and Resurrection of the Disparate Impact Theory of Discrimination, 22 HOFSTRA LAB. & EMP. L.J. 43 (2005);
92. Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 HARV. L. REV. 493 (2003);
93. Selmi, supra (2006);
94. Girardeau A. Spann, Disparate Impact, 98 GEO. L.J 1133 (2010);
95. Charles A. Sullivan, The World Turned Upside Down?: Disparate Impact Claims by White Males, 98 Nw. U. L. REV. 1505 (2004).
96. Looking at specific workplace statistics, however, a black female plaintiff could prevail on a challenge to her individual employer's restriction on braids, locks, and twists under a disparate impact analysis. An employer violates Title VII under the disparate impact theory if it maintains a specific employment practice that although facially neutral, "in fact fall[s] more harshly on one group than another and cannot be justified by business necessity."
97. Int'l Bhd of Teamsters, 431 U.S. at 335 n.15;
98. see Griggs v. Duke Power Co., 401 U.S. 424,431 (1971);
99. see also Watson v. Fort Worth Bank & Trust 487 U.S. 977, 994 (1988) (holding that to establish a Title VII disparate impact claim, plaintiff must identify specific employment practice challenged and show statistically that the practice has excluded "applicants. because of their membership in a protected group"), superseded in part by statute,
100. Civil Rights Act of 1991, Pub. L. No. 102-166,105 Stat. 1074 (placing burdens of production and persuasion on defendant to "demonstrate that the challenged practice is job related... and consistent with business necessity").
101. "Discriminatory intent need not be proven, the theory can apply to either objective or subjective practices, and those practices can turn on either immutable characteristics or difficult to change characteristics, regardless of whether or not reliance on those characteristics serves to perpetuate the effects of pre-Title VII intentional discrimination."
102. Eatman v. United Parcel Serv., 194 F. Supp. 2d 256, 266 (S.D.N.Y 2002) (citations omitted). In this sense, each disparate impact plaintiff in a natural-hairstyle grooming case would have to produce evidence of (1) the relevant population of employees within the business who are affected by the policy (all black women with extremely curly or tightly coiled hair, regardless of whether they actually straighten their hair or not) and (2) the comparison group for all others in the relevant population, such as all non-black women, excluding Afro-Latinas, who do not have tightly coiled hair. As I mentioned above, however, this information is difficult to obtain because statistics are not collected regarding the hair types of black and white women, although intuition strongly suggests that a very high percentage of black women belong in group one and a very high percentage of white women belong in group two in any workplace.
103. See infra section IV.C (briefly analyzing a potential disparate impact claim).
104. -527 F. Supp. 229 (S.D.N.Y 1981);
105. see also Caldwell, supra note 10 (critiquing Rogers);
106. Paulette M. Caldwell, Intersectional Bias and the Courts: The Story of Rogers v. American Airlines, in RACE LAW STORIES 571,571-600 (Rachel F. Moran & Devon Wayne Carbado eds., 2008) (same). As Caldwell reveals in her chapter in Race Law Stories, this published case name actually misspells the plaintiff's last name. The correct spelling is "Rodgers."
107. Caldwell, supra, at 572
108. (citing Complaint Class Action, at 1, Rogers v. Am. Airlines, 527 F. Supp. 229 (S.D.N.Y 1981) (No. 81 Civ. 4474 (AS))). For the sake of consistency, however, I use the spelling "Rogers" throughout this Essay.
109. Caldwell, supra note 10.
110. See Trina Jones, Shades of Brown: The Law of Skin Color, 49 DUKE L.J. 1487, 1493 (2000) ("[G]ross morphological differences (e.g., the broadness of the nose, the fullness of the lips, the curl of the hair) have and continue to be used to delineate racial categories and to assign persons to racial groups.");
111. see also id. at 1515-22 (discussing how skin color has "played an important role within the Black community"). Essentialism posits that there is "a unitary, 'essential'... experience [that] can be isolated and described independently of [gender,] race, class, sexual orientation, and other realities of experience" for any identity group, such as women.
112. Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN.L. REV. 581, 585 (1990);
113. see also Emily M.S. Houh, Toward Praxis, 39 U.C. DAVIS L. REV. 905, 924-28 (2005) (defining both intersectionality and anti-essentialism);
114. cf. Catherine Smith, Unconscious Bias and "Outsider" Interest Convergence, 40 CONN. L. REV. 1077, 1084-1088 (2008) (exploring how unconscious biases contribute to "racial identification," arguably akin to essentialism).
115. Rogers, 527 F. Supp. at 231 (referring to the airline's prohibition on braided hairstyles).
116. Id;
117. see also Caldwell, supra note 35, at 575 (noting that "American [Airlines'] grooming rules [were] for customer-contact ground personnel").
118. Rogers, 527 F. Supp. at 231.
119. Id. at 231-232 (internal quotation marks omitted).
120. Id. at 231.
121. Id. at 231-232
122. Id. at 231.
123. Id.
124. Id. at 234.
125. Id. at 232.
126. Id.
127. Id.
128. Id.
129. Id.
130. Id. at 233.
131. Id.
132. Id. at 231-232
133. See Caldwell, supra note 35, at 571.
134. Caldwell, supra note 10.
135. Caldwell also examined Rogers in her chapter Intersectional Bias and the Courts: The Story of Rogers v. American Airlines in RACE LAW STORIES.
136. See Caldwell, supra note 35.
137. See Caldwell, supra note 10, at 371.
138. Id. at 377;
139. see also Caldwell, supra note 35, at 573 (asserting that "race and gender discrimination operated together to affect [Rogers] as a black woman in a way that was not experienced by either white women or black men").
140. Caldwell, supra note 10, at 378.
141. Id. at 379-380
142. Id. at 384-85. Caldwell, however, identified braided hairstyles as both mutable and immutable, unlike Afros, which have been identified as immutable.
143. Id.
144. Id;
145. see also Padgett, supra note 33 ("[B]lack hair has been controversial-especially when worn in its natural state in styles like Afros, braids, cornrows and dreadlocks.").
146. ARRESTED DEVELOPMENT, Africa's Inside Me, on ZINGALAMADUNI (Capitol Records 2006).
147. Rogers v. Am. Airlines, 527 F. Supp. 229, 232-233 (S.D.N.Y 1981).
148. See generally LONNICE BRITTENUM BONNER, PLATTED GLORY: FOR COLORED GIRLS WHO'VE CONSIDERED BRAIDS, LOCKS, AND TWISTS (1996) (discussing and providing tips for how black women can protect maintain, and wear their hair naturally).
149. See supra note 11 and accompanying text;
150. see also Marjorie Florestal, Is a Burrito a Sandwich? Exploring Race, Class, and Culture in Contracts, 14 MICH. J. RACE & L. 1, 37 (2008) (identifying the difficulty in challenging identity norms);
151. Patricia A. Tidwell & Peter Linzer, The Flesh-Colored Band Aid-Contracts, Feminism, Dialogue, and Norms, 28 Hous. L. REV. 791, 794 (1991) ("What we see as obvious-often so obvious that we really give it no thought-may be only one of many ways of looking at things, but a way that has dominated our legal culture for many years.").
152. See, e.g., Pitts v. Wild Adventures, Inc., No. 7:06-CV-62-HL, 2008 WL 1899306, at *5 (M.D. Ga. Apr. 25, 2008);
153. McBride v. Lawstaf, Inc., No. 1:96-cv-0196-cc, 1996 WL 755779, at *2-3 (N.D. Ga. Sept. 19,1996).
154. Tina Ezell Hull, Catching the Natural Wave: African American Women Learning to Love Their Hair's True Texture, CHARLOTTE OBSERVER, Dec. 14, 2007, at E1.
155. LONNICE BRITENUM BONNER, GOOD HAIR: FOR COLORED GIRLS WHO'VE CONSIDERED WEAVES WHEN THE CHEMICALS BECAME TOO RUFF 15(1991).
156. Id. at 17.
157. Id. at 16.
158. Id. at 17. The outside layer, the cuticle, contains the hair's coloring, and the third, middle layer, the medulla, is a soft keratin layer.
159. Id. at 16-17.
160. Id. at 17.
161. Id.
162. Id.
163. Id. at 17-18.
164. See, e.g., Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1387, 1389 (11th Cir. 1998);
165. Távora v. N.Y Mercantile Exch., 101 F.3d 907,908 (2d Cir. 1996);
166. Austin v. Wal-Mart Stores, Inc., 20 F. Supp. 2d 1254,1257 (N.D. Ind. 1998).
167. See, e.g., Jespersen v. Harrah's Operating Co., 444 F.3d 1104,1109-1112 (9th Cir. 2006) (en banc).
168. See generally Carbado et al., supra note 23, at 135-148 (noting that the Jespersen court's decision focused on the absence of unequal burdens and comparing that decision to other Title VII gender discrimination decisions).
169. See id. at 105-113 (detailing the historical and current norms of make-up for women).
170. Jespersen, 444 F.3d at 1107.
171. Id. at 1110
172. (quoting Knott v. Mo. Pac. R.R. Co., 527 F.2d 1249,1252 (8th Cir. 1975)).
173. Id. at 1114 (Pregerson, J., dissenting);
174. see also Kirsten Dellinger & Christine L. Williams, Makeup at Work- Negotiating Appearance Rules in the Workplace, 11 GENDER & SOC'Y 151,158 (1997) (finding that one of the reasons that many women wear make-up is "because it makes them feel confident about themselves," "more polished," "prepared to meet the public," and "[m]ore attractive").
175. Jespersen, 444 F.3d at 1116 (Pregerson, J., dissenting).
176. Id. at 1111 (majority opinion) (refusing to "take judicial notice of the fact that it costs more money and takes more time for a woman to comply with the makeup requirement than it takes for a man to comply with the requirement that he keep his hair short").
177. Id. at 1117 (Kozinski, J., dissenting).
178. See, e.g., supra notes 77-78 and accompanying text;
179. see also POST, supra note 4, at 44 ("What seems in fact to be driving the outcome in Willingham is the conviction that employers reasonably may impose sex-based stereotypes in matters of grooming, so long as these stereotypes conform to traditional gender conventions.").
180. -4 Fair Empl. Prac. Cas. (BNA) 18 (June 10,1971) (internal quotation marks omitted).
181. Id.
182. Id.
183. The EEOC even endorsed a cultural argument for protecting Afros, "not[ing] that the wearing of an Afro-American hair style by a Negro has been so appropriated as a cultural symbol by members of the Negro race as to make its suppression... an automatic badge of racial prejudice."
184. Id.
185. -538 F.2d 164, 167 (7th Cir. 1975) (en banc).
186. Id.
187. Id.
188. Id at 168.
189. Rogers v. Am. Airlines, 527 F. Supp. 229, 232 (S.D.N.Y 1981);
190. see also McBride v. Lawstaf, Inc., No. 1:96-cv-0196-cc, 1996 WL 755779, at *2 n.2 (N.D. Ga. Sept 19,1996).
191. See, e.g., McBride, 1996 WL755779, at 2-3.
192. No. 7:06-CV-62-HL, 2008 WL1899306, at *1, *6 (M.D. Ga. Apr. 25, 2008).
193. Id. at *1.
194. Id. at *6.
195. Courts have held the same with regard to black men who wear their hair in styles such as locks, though black men are not the subject of this Essay. For example, in Eatman v. United Parcel Service, the district court rejected the black male plaintiff's disparate treatment race discrimination claim on the ground that "Title VII does not prohibit discrimination on the basis of locked han-" and his disparate impact claim on the ground that the plaintiff had "shown only that a large percentage of those employees with what UPS considers 'unbusinesslike' hair are black employees." 194 F. Supp. 2d 256, 262, 266-267 (S.D.N.Y 2002).
196. No. Civ.A.99-3891, 2000 WL 1610775, at *1, *3 (E.D. La. Oct. 26, 2000). One could argue that blonde hair color is extreme on black women because black women are less likely than white women to be natural blondes. Several questions arise from this argument however. First many black women who are admired for their appearance, including Beyonce, Mary J. Blige, and Tyra Banks, dye their hair blonde. Would these women lose their job or not be hired because of their hair color choice while a star such as Christina Ricci or Angelica Huston would not despite an "unnatural" look on them, simply because they are white? Second, and more importantly, if the likelihood of natural blonde hair is viewed here as determinative, why shouldn't the likelihood of having a certain structure and texture of hair be determinative in braids or locks cases? The Rogers court determined that there was no discrimination against black women due to American Airlines' prohibition of braids because black and white women were both subject to the policy. If receiving the exact same treatment regardless of any substantive meaning, is paramount in Rogers, why shouldn't the same principle apply in Santee? Third, even if the employer's regulation were to label all dyed hair as "extreme," how would the enforcement of that regulation not disproportionately affect black women? One can easily imagine a situation in which black women with anything but black hair would be required to prove that their hair color is natural, while white women would routinely be presumed to be wearing their natural color, except when they are wearing truly extreme colors such as pink or purple. The irony of Santee is that the plaintiff was completely conforming to the normative ideal for women: straight blonde hair.
197. One court described the disorder in more detail: Pseudofolliculitis barbae ... is a facial skin condition that afflicts certain persons with curly or kinky hair follicles. After shaving, the curved hair follicles cause the already curly hair to curve back into contact with the skin surface, and pierce and re-enter the skin, forming a pseudofollicle. The pseudofollicle becomes inflamed, and painful papules and pustules result. In severe cases, abscesses develop around the pseduofollicles and, if untreated, cause scarring, hyperpigmentation, and disfigurement. Once a person is afflicted by PFB, it lasts the person's lifetime. There is no cure for PFB. A person afflicted by the condition, however, may induce remission by growing a beard one-quarter inch in length. Such 'beard therapy' is the standard medical treatment for PFB. The remission obtained through beard therapy is nearly complete. The condition will redevelop if a person resumes shaving. PFB is an immutable condition that, with few exceptions, afflicts only male blacks.
198. Richardson v. Quick Trip Corp., 591 F. Supp. 1151, 1153-1154 (S.D. Iowa 1984).
199. EEOC v. Trailways, Inc., 530 F. Supp. 54, 56 (D. Colo. 1981).
200. -420 F. Supp. 35, 42-43 (E.D. Va. 1976). The court also found no disparate impact on the basis of race because the "slight racial impact" was not sufficient to override the employer's legitimate business purpose of cleanliness.
201. Id.
202. Alternatively, the court held that the "no beard" policy served a legitimate business purpose even if there was some discriminatory impact
203. Id. at 42-43.
204. Trailways, Inc., 530 F. Supp. at 56-57.
205. -635 F.2d 188, 190 n.3 (3d Cir. 1980) (citation omitted).
206. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1121 (11th Cir. 1993) (denying a discrimination claim by a black man suffering from PFB on the grounds of safety).
207. See Adrienne D. Davis, Identity Notes Part One: Playing in the Light, 45 AM. U. L. REV. 695, 705 (1996) (identifying physical characteristics as an important component of racial identity).
208. See generally Angela Onwuachi-Willig, Multiracialism and the Social Construction of Race: The Story of Hudgins v. Wright in RACE LAW STORIES 147 (Rachel F. Moran & Devon Wayne Carbado eds., 2008) (same).
209. -530 F. Supp 54, 56 (D. Colo 1981).
210. Id. at 57 (emphasis added).
211. See,'e.g., Johnson v. Memphis Police Dep't, 713 F. Supp. 244, 247-248 (WD. Tenn. 1989) (recognizing a claim of race discrimination based on PFB).
212. EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 196 (3d Cir. 1980).
213. AYANA D. BYRD & LORI L. THARPS, HAIR STORY: UNTANGLING THE ROOTS OF BLACK HAIR IN AMERICA 17-18 (2001);
214. see also INGRID BANKS, HATR MATTERS: BEAUTY, POWER, AND BLACK WOMEN'S CONsCIousNESs 7 (2000) (citing Willie Morrow's 400 Years Without a Comb, which argued that "skin color and 'curly or kinky hair' are so intertwined that it is hard to separate the two when examining the forces that shape black people's lives");
215. ORLANDO PATTERSON, SLAVERY AND SOCIAL DEATH: A COMPARATIVE STUDY 61 (1982) ("Hair type rapidly became the real symbolic badge of slavery, although like many powerful symbols it was disguised,- in this case by the linguistic device of using the term 'black,' which nominally threw the emphasis to color.");
216. cf. DON HERZOG, POISONING THE MINDS OF THE LOWER ORDERS 458 (1998) ('Think too of how easy it is to become invested in others' hair, to see it as betraying distasteful facts. One antislavery writer denied that the woolly hair of Negroes was a badge of inferiority.").
217. -11 Va. (1 Hen. & M.) 134 (1806).
218. Id. at 138-140
219. Id. at 139.
220. Hudgins, 11 Va. (1 Hen. & M.) at 139 (emphasis added).
221. Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1, 2 (1994).
222. See Sumi Cho, Post-Racialism, 94 IOWA L. REV. 1589, 1591-93 (2009) (noting the increasing calls after Obama's election that the United States is post-racial);
223. see also Onwuachi-Willig, supra note 107, at 164-173 (analyzing contemporary lessons from Hudgins).
224. Rogers v. Am. Airlines, 527 F. Supp. 229, 232 (S.D.N.Y. 1981) (internal quotation marks omitted).
225. Caldwell, supra note 35, at 571.
226. See Kevin R. Johnson & George A. Martinez, Discrimination by Proxy: The Case of Proposition 227 and the Ban on Bilingual Education, 33 U.C. DAVIS L. REV. 1227, 1247-75 (2000) (analyzing discrimination by proxy where actors use characteristics associated with a minority group-specifically Latinos-such as language and immigration status, to discriminate on the basis of race and ethnicity);
227. Angela Onwuachi-Willig & Mario L. Barnes, By Any Other Name?: On Being "Regarded As" Black and Why Title VII Should Apply Even if Lakisha and Jamal Are White, 2007 Wis. L. REV. 1283, 1297-1312 (examining situations where individuals used factors such as names on résumés or voices over the phone to discriminate in the selection of job candidates or rental housing applicants);
228. Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N.YU. L. REV. 1134, 1172-94 (2004) (analyzing how employers regulate race and gender under Title VII to postulate the existence of intentional discrimination where employers use appearance and grooming standards to shape identity performance).
229. See generally D. Wendy Greene, Title VII: What's Hair (and Other Race-Based Characteristics) Got To Do with It?, 79 U. COLO. L. REV. 1355, 1360-94 (2008) (arguing for a judicial analysis in a more historical and contemporary social context to ascertain whether the employers' decisions perpetuate racial stigmatization);
230. R.A. Lenhardt Understanding the Mark: Race, Stigma, and Equality in Context, 79 N. Y.U. L. REV. 803, 803-64 (2004) (arguing for more focus on the dehumanizing meanings associated with race in antidiscrimination law);
231. Angela OnwuachiWillig & Mario L. Barnes, Lakisha and Jamal Go to Work: Analyzing Workplace Appearance and Grooming Standards as "Racial Stereotyping" (manuscript draft on file with the author) (arguing for a mixed-motive, racial stereotyping framework).
232. RICHARD THOMPSON FORD, RACIAL CULTURE: A CRITIQUE 13 (2005);
233. see also Keith Aoki & Kevin R. Johnson, An Assessment of LatCrit Theory Ten Years After, 83 IND. L.J. 1151, 1190 (2008) ('To Ford, denial of the 'right' to wear cornrows at work falls in the domain of cultural self-expression.").
234. FORD, supra note 122, at 12.
235. Id.
236. Id. at 24-25.
237. For a definition of race and gender essentialism, see Harris, supra note 37, at 585, which defines gender essentialism as a notion that there is "a unitary, 'essential' women's experience ... isolated and described independently of race, class, sexual orientation, and other realities of experience."
238. Id. at 24-26.
239. -4 Fair Empl. Prac. Cas. (BNA) 18 (June 10, 1971) (determining that applying the employer's '"line of sight' hair grooming policy to all employees, without regard to their racially different physiological and cultural characteristics, tends to adversely affect Negroes because they have a texture of hair different from Caucasians").
240. See id.
241. (holding that while an employer's line of sight grooming policy was equally enforced, it adversely affected black employees who naturally have a different texture hair from white employees);
242. see also Jenkins v. Blue Cross Mut Hosp. Ins., 538 F.2d 164,166-67 (7th Cir. 1976) (recognizing that the plaintiff had a valid Title VII claim where she alleged that her employer fired her because of her Afro hairstyle).
243. It is important to note that race also has been defined, both in historical and contemporary terms, by performance.
244. See Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth Century South, 108 YALE L.J. 109, 118-21 (1998) (detalling how determinations of race by juries during the nineteenth century often turned on witness testimony regarding hair color, hair texture, facial features, and social performances);
245. see also Haney López, supra note 117, at 49-50 ("For example, seemingly inconsequential acts like listening to rap and wearing hip hop fashions constitute a means of racial affiliation and identification.");
246. Daniel J. Sharfstein, The Secret History of Race in the United States, 112 YALE L.J. 1473, 1479 (2003) (discussing how "scholars have shown [that] scientific notions of race such as genealogy or physical appearance have never been the courts' sole or even preferred type of evidence for determining race").
247. FORD, supra note 122, at 8 (emphasis added).
248. Caldwell, supra note 35, at 599.
249. Weitz, supra note 11, at 681.
250. See generally Crenshaw, supra note 6 (explaining that women of color are at the intersection of race and gender oppression). Section 15 of the EEOC Compliance Manual now includes a brief explanation of intersectional discrimination. It reads in its entirety: Title VII prohibits discrimination not just because of one protected trait (e.g., race), but also because of the
251. Beth Ribet Emotion, Power Relations, and Restorative Justice: A Review of Compulsory Compassion by Annalise Acorn, 15 UCLA WOMEN'S L.J. 115, 127 n.60 (2006) (discussing Crenshaw's theory of structural intersectionality);
252. see also Kevin R. Johnson, An Essay on the Nomination and Confirmation of the First Latina Justice on the U.S. Supreme Court: The "High Tech Lynching" of a "Wise Latina"? 20 (University of California, Davis Legal Studies Research Paper Series, Research Paper No. 188, 2009), available at http://ssm.com/abstract= 1460932 ("Women of color ... are generally speaking more disadvantaged in American social life than either white women or men of color- groups whose members generally possess only a single subordinating characteristic.").
253. See Ribet supra note 133, at 127 n.60;
254. see also Trina Grillo, Anti-Essentialism and Intersectionality: Tools to Dismantle the Master's House, 10 BERKELEY WOMEN'S L.J. 16, 17(1995).
255. Crenshaw, supra note 6, at 139-41;
256. Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1245-1296 (1991).
257. See Rosette & Dumas, supra note 7, at 409-10 ("The expectation of hair straightening falls solely on Black women and not on Black men. In fact Black men are expected to wear their hair in its natural state- though the expectation is for keeping it short and conservatively groomed. Accordingly, the hairstyle dilemma for Black women is both uniquely racialized and gendered.").
258. Ford asks, "[I]sn't the desire for long, flowing hairstyles actually a symptom of the Eurocentric grooming norms that [the right to braids] is supposed to resist?" FORD, supra note 122, at 27.
259. Hull, supra note 68.
260. See Rosette & Dumas, supra note 7, at 412, 415 ("[W]e argue that Black women conform primarily because they seek to minimize, the perception that they are different from their colleagues and because they want to avoid the pitfalls of stereotyping.");
261. see also Barbara J. Flagg, Fashioning A Title VII Remedy for Transparently White Subjective Decisionmaking, 104 YALE L.J. 2009, 2009-30 (1995) (creating two fictional, black sisters, Yvonne Taylor and Keisha Akbar, who perform their racial identities differently in their corporate workplaces, and detailing how Keisha, who "place[d] an emphasis on her African heritage," would find it more difficult to advance an employment discrimination claim).
262. Weitz, supra note 11, at 678 (citation omitted);
263. see also Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1262-1263 (2000) (describing how women and people of
264. color attempt to alter their identities in order to prevent discrimination and preempt stereotyping in the workplace);
265. Kenji Yoshino, Covering, 111 YALE L.J. 769, 892 (2002).
266. Padgett supra note 33.
267. Id.
268. See supra note 33.
269. In my own personal experience, the most vocal protesters to my decision to lock my hair were Blacks, who viewed such a decision as a career-limiting gesture.
270. See also Padgett, supra note 33
271. (noting that "most black women-especially those in high-ranking positions ... chemically straighten their hair"). The empirics bear out however, that black women who make $100, 000 a year or more are the most likely of any income group of black women to wear their hair naturally and unprocessed. MINTEL INT'L GROUP, BLACK HATRCARE - US-AUGUST 2009-MARKET RESEARCH REPORT, fig.36 ("Frequency of relaxer treatments, by household income, June 2009") (on file with author). Many of the most prominent black female faces are adorned by relaxed hair and, in many cases, artificial, straight hair, otherwise known as weaves. For example, Oprah Winfrey and Michelle Obama both relax their hair, and model Tyra Banks is famous for her long weaves. In fact, Banks received nationwide attention for appearing on her talk show without a weave. Tyra Banks to Reveal Her "Real Hair," USMAOAZINE.COM Aug. 17, 2009, http://www.usmagazine.com/moviestvmusic/news/tyra-banks-to-reveal-her- real-hair-2009178. This Essay does not contend that such relaxed or chemically treated hairstyles are unacceptable or improper. They are suitable choices for black women. Rather, this Essay contends that the implicit demands in many employer dress codes and in society in general often leave black women with no choice but to relax or otherwise straighten their hair.
272. Whitney Bellinger, Why African American Women Try To Obtain 'Good Hair, ' SOCTOLOGICAL VIEWPOINTS 63, 66 (Fall 2007);
273. see also White, supra note 2, at 301
274. ("I remember at an early age the weekly ritual of getting my hair pressed .... This ritual took place on Saturday afternoons in order to look 'presentable' for church .... I was told not to play 'too hard' so that my hair would not 'go back' (to its natural state) .... At an early age, I internalized that my natural born hair was not good enough; it was not acceptable enough to make me worthy of being presentable.").
275. One author defined "good hair" within the black community as "hair which is long, straight and has a silky feeling or when one had seemingly Caucasian hair."
276. Bellinger, supra note 144, at 67;
277. see also BONNER, supra note 65, at 1
278. (describing the standard definition of "good hair" within the black community as "[h]air that's naturally straight loosely curled or waved");
279. Rosette & Dumas, supra note 7, at 418
280. (explaining that a black woman's statement that she straightened her hair to make it look "better" "implicitly assumes that the natural state of many Whites' hair is indeed 'better' than the natural state of Blacks' hair");
281. cf. Patton, supra note 26, at 38
282. (noting that "bad hair" has been associated with kinky hair).
283. See Lanita Jacobs-Huey, Enacting Racial and Gendered Authenticity in Black Hair Humor
284. May 26, 2007, http://www-rcf.usc.edu/~jacobshu/ALA07.pd. Here is Whoopi Goldberg's routine in relevant part: ((Swinging white shirt on her head)) This is my long and luxurious blonde hair. Ain't it pretty? ((Audience: Yeah!)) I can put it in a ponytail. Wanna see? ((Goldberg turns around, grabs the shirt and swings shirt sleeves))... My momma made me go to my room, cause she said this wasn't nothing but a shirt on my head and I said, "Nuh unh, this is my long luxurious blonde hair." She said, "Nuh unh, fool, that's a shirt!" And I said, "You a fool. It's my hair." She made me go to my room. But I don't care because when I get big, I'ma get fifty million trillion million million elephants and I'ma let 'em go in the house so they can trample on everybody. And then she gonna want me to make 'em stop but she ain't even gonna know I'm there because I'ma have blonde hair, blue eyes, and I'ma be White .... I AM! Uh huh! And then I'ma have a dream house, and a dream car, and dream candy and a dream house and me and Barbie are gonna live with Ken and Skipper and Malibu Barbie.
285. Id.
286. See, e.g., BONNER, supra note 65, at 8-9
287. ("I can really relate to Whoopi Goldberg's joke about wearing a towel on her head, pretending it was her hair because I did that stuff, too.").
288. Padgett, supra note 33.
289. In fact "Latino and African-American men ... seem more often than white men to link long hair with attractiveness for women of all ages."
290. Weitz, supra note 11, at 672.
291. Ieesha McKinzie, Hampton Business School Sticks by Requirement for "Conservative" Hairstyles, BLACK COLLEGE WIRE, Mar. 27, 2006, available at http://www.blackcollegewire.org/news/060327hampton-hair/.
292. See Tamara Dietrich, HU Policy on Hair Might Be Better with a Trim, DAILYPRESS.COM, Apr. 23, 2006, available at http://articles.dailypress.com/2006- 04-23/news/0604230074-l-black-heritagehampton-university-black-family (quoting the dean of Hampton's Business School).
293. For example, Sean Linder, a former student in the business program, described the policy as "a way of making African Americans assimilate to the mainstream standards [of] 'what is professional and what is not.'" McKinzie, supra note 149. Linder, who was initially asked to sit in the back of the classroom when he did not comply with Hampton Business School's hairstyle policy by wearing his hair in twists, opted to complete extra work and assignments in order to make up missed seminars for classes he was not allowed to attend because of his violations of the policy.
294. Id.
295. (quoting Linder as saying "I noticed everyone back there [in the classroom] had ethnic hairstyles").
296. See id.; see also Dietrich, supra note 150
297. (noting that Dean Credle said the policy is "to help groom [the students] for the button-down, clean-cut corporate world to which they [are] headed").
298. See McKinzie, supra note 149.
299. Id.
300. Another commentator described his friend's argument in favor of Hampton's policy, stating, "[My friend] countered that the business world does not see either [tastefully styled braids or dreadlocks] as standard-issue hairstyles. When in the business world, she added, you do as the business people do. That's how you get a job and it's how you get ahead."
301. Allen Johnson, A Hair-Raising Debate, NEWS-RECORD.COM, Apr. 13, 2006, http://blog.news-record.com/staff/outloud/archives/2006/04/ a-hairraising-d. shtrnl (emphasis added).
302. Keli Goff, Michelle Obama: Wonder Woman, HUFFINGTON POST, Mar. 11, 2009, http://www.huffingtonpost.com/keli-goff/michelle-obama-wonder-wom-b-173886.html? view=print.
303. Id. (emphasis added);
304. see also Jenee Desmond-Harris, Why Michelle's Hair Matters, TIME, Sept 7, 2009, at 55-56
305. (discussing how the "obsession" with Michelle Obama's hair has become "a catalyst for a conversation ... [about] African-American women's status in terms of beauty, acceptance and power").
306. Caldwell, supra note 10, at 390.
307. -411 U.S. 792, 802 (1973);
308. see also Trans World Airlines v. Thurston, 469 U.S. 111, 121 (1985)
309. ("The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the 'plaintiff [has] his day in court despite the unavailability of direct evidence.'"
310. quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979)))
311. . A number of scholars have argued that Desert Palace v. Costa, 539 U.S. 90 (2003), will result in the treatment of most Title VII intentional discrimination claims as mixed motive cases and have maintained that the McDonnell Douglas framework is no longer viable,
312. See, e.g., William R. Corbett, An Allegory of the Cave and the Desert Palace, 41 Hous. L. REV. 1549, 1566 (2005);
313. Jeffrey A. Van Detta, "Le Roi est Mort; Vive Le Roil": An Essay on the Quiet Demise of McDonnell Douglas and the Transformation of Every Title VII Case after Desert Palace,
314. Inc. v. Costa into a "Mixed Motives" Case, 52 DRAKE L. REV. 71, 72-73 (2003);
315. Michael J. Zimmer, The New Discrimination Law: Price Waterhouse Is Dead Whither McDonnell Douglas?, 53 EMORY L.J. 1887, 1891 (2004).
316. But see Matthew R. Scott & Russell D. Chapman, Much Ado About Nothing-Why Desert Palace Neither Murdered McDonnell Douglas Nor Transformed All Employment Discrimination Cases to Mixed-Motive, 36 ST. MARY'S L.J. 395, 405 (2005)
317. ("[N]othing in Desert Palace hints at the death or even wounding of McDonnell Douglas."). Many courts, however, still apply the McDonnell Douglas framework in analyzing discrimination cases.
318. See., e.g., Strate v. Midwest Bankcentre, Inc. 398 F.3d 1011, 1017 (8th Cir. 2005).
319. McDonnell Douglas, 411 U.S. at 802;
320. see also Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992).
321. McDonnell Douglas, 411 U.S. at 803-04;
322. see also Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-256 (1981) (noting that the defendant's burden is only one of production, not persuasion).
323. McDonnell Douglas, 411 U.S. at 803-04;
324. see also Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000).
325. Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003).
326. Even upon proof of pretext a jury may still ultimately rule in favor of the defendant if it believes that a nondiscriminatory factor was at play.
327. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)
328. (holding that a plaintiff who proves pretext in the third stage does not necessarily win because the factfinders may still find that there was no discrimination). As Professor Martin Katz has explained: If the defendant's proffered reason is wrong, the factfinder can conclude either that the defendant lied or that the defendant made a good faith mistake (a nondiscriminatory reason). Or if the defendant lied, the factfinder can conclude that the lie was either a cover-up or a lie for a benign reason (a second possible nondiscriminatory reason). Or, if the defendant engaged in a cover-up, the factfinder can conclude that what was being covered up was either a discriminatory motivation or a nondiscriminatory one (a third possible nondiscriminatory reason).
329. Martin J. Katz, Reclaiming McDonnell Douglas, 83 NOTRE DAME L. REV. 109, 172 (2007).
330. "The[se] presumptions and shifting burdens are merely an aid-not ends in themselves." Goodman v. Lukens Steel Co., 777 F.2d 113, 130 (3d Cir. 1985).
331. The ultimate burden of persuasion rests with the plaintiff at all times. Burdine, 450 U.S. at 253.
332. See 110 CONG. REC. 2550 (1964) (expressly rejecting race as a BFOQ).
333. Jespersen v. Harrah's Operating Co., 444 F.3d 1104, 1109 (9th Cir. 2006) (en banc);
334. Frank v. United Airlines, 216 F.3d 845, 854 (9th Cir. 2000).
335. Jespersen, 444 F.3d at 1108-09;
336. Harriss v. Pan Am. World Airways, 649 F.2d 670, 673 (9th Cir. 1980).
337. Frank, 216 F.3d at 854.
338. Jespersen, 444 F.3d at 1109.
339. See POST, supra note 4, at 17-18.
340. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
341. see also Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992).
342. Rosette & Dumas, supra note 7, at 411-416
343. See infra notes 177-210 and accompanying text.
344. There are very few of these cases. See Jenkins v. Blue Cross Mutual Hosp. Ins., 538 F.2d 164, 168 (7th Cir. 1976)
345. (recognizing that the plaintiff had a valid Title VII claim when she alleged that her employer fired her because of her Afro hairstyle);
346. -4 Fair Empl. Prac. Cas. (BNA) 18 (June 10, 1971) (holding that while an employer's line-of-sight grooming policy was equally enforced, it adversely affected black employees who naturally have a different texture hair from white employees);
347. see also Rogers v. Am. Airlines, 527 F. Supp 229, 232 (S.D.N.Y 1981) (asserting that a code that prohibits "the 'Afro/bush' hairstyle might offend Title VII'').
348. Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003).
349. Caldwell, supra note 10, at 378-80.
350. Ironically, courts routinely dismiss Section 1981 claims brought by black women who have filed charges against white salons that charge black women more than white women for a "wash and set" or other services because their hair is more "labor intensive."
351. See Constance Dionne Russell, Styling Civil Rights: The Effect of § 1981 and the Public Accommodations Act on Black Women's Access to White Stylists and Salons, 24 HARV. BLACKLETTER L.J. 189, 206-17 (2008).
352. Rosette & Dumas, supra note 7, at 411.
353. Hull, supra note 68, at IE (noting that black women's curly hair normally requires a touch-up every six weeks);
354. Straight Talk on Hair-Straightening Treatment, ABC NEWS, Aug. 13, 2004, http://abcnews.go.com/print?id= 124236
355. (noting that Carmine Minardi, one of New York City's top stylists, charges $300 for a relaxer, which he does in two hours);
356. see also Shamontiel, Hair Care Advice for African-American Women: How To Take Care of Your Natural Hair Without a Beauty Salon, ASSOCIATED CONTENT, NOV. 3, 2008, http://www.associatedcontent.com/article/1167232/hair-careadvice-for- africanamerican.html (asserting that touch-ups occur once a month).
357. Lolly Bowean, When Words Wound: Chicagoans Speak Out About Radio Host's Hurtful Remarks, CHI. TRIB., Apr. 11, 2007, at 1;
358. see also BONNER, supra note 65, at 2 (noting that "[b]lack hair care is a billion dollar business").
359. MIDGE WILSON & KATHY RUSSELL, DIVIDED SISTERS: BRIDGING THE GAP BETWEEN BLACK WOMEN AND WHITE WOMEN 92 (1996);
360. Judy Foster Davis, New Hair Freedom? 1990s Hair Care Marketing and the African-American Woman, 10 CONF. ON HIST. ANALYSIS AND RES. IN MKTG. (CHARM) 31 (2001), available at http://faculty.quirmipiac.edu/charm/CHARM%20proceedings/ CHARM%20article%20archive%20pdf%20format/Volume%2010%202001/31%20davis.pdf;
361. Sara Mason, Global Report Hair Care 2: Care for Black Hair 171 GLOBAL COSMETIC INDUSTRY 1, at 42-43 (2003) (noting that forty-seven million dollars was spent by Blacks on chemical treatments or relaxers in 2002); R
362. osette & Dumas, supra note 7, at 411;
363. Patton, supra note 26, at 37;
364. Catherine Saint Louis; Black Hair, Still Tangled in Politics, N.Y TIMES, Aug. 27, 2009, at El (stating that in 2008, "sales of home relaxers totaled $45.6 million (excluding Wal-Mart)").
365. Although "blacks make up 13% of the U.S. population, they account for more than 30% of industry spending in a $4 billion dollar hair care market" Mason, supra, 42. In fact in a report, Packaged Facts, a market research firm, documents that in the ethnic haircare category, African Americans spent $360 million on relaxers in 2007.
366. PACKAGED FACTS, ETHNIC HAIR, BEAUTY, AND COSMETICS PRODUCTS TN THE U.S. 49 (6th ed. 2008) (on file with author).
367. Zmitri Erasmus, 'Oe! My Hare Gaan Huistoe': Hair-Styling as Black Cultural Practice, 32 AGENDA: RACE, IDENTITY AND CHANGE 11, 11-12 (1997).
368. In fact a recent study by USA Swimming revealed that almost twice as many black children as white children could not swim, 58% for black children compared to 31% of white children.
369. See Black Children 3 Times More Likely to Drown, USATODAY.COM Jan. 5, 2008, http://www.usatoday.com/news/health/2008-05-01-swimming-minorities-N.htm.
370. The percentage of Latino children was 56%. Overall, black girls had weaker swimming skills than black boys and were less comfortable at pools. Id. The consequences of such poor skills are severe, resulting in three times more drowning deaths for black children than for white children. Id. Although concerns about hair for black girls alone do not explain the discrepancy in swimming percentages between black and white children, they are likely part of the equation-that is, if the views of adult black women are indicative. Even black female movie stars such as Nia Long and Lauren London, who have access to money and pools, admit that even as they may have swimming pools in their backyards, they do not go swimming in order to avoid messing up their hair.
371. Sisters, Don't Be Held Hostage by 'Good Hair' Ideal, BLACK AMERICA WEB, Aug. 13, 2009, http://www.blaclcamericaweb.com/?q=print/news/baw-commentary- news/11749.
372. One commentator noted that black women are "so obsessed with preserving our hair in its weaved and straightened state that we miss out on too many other adventures that life has to offer."
373. Id.
374. Tanika White, With Weaves, Stars Let Their Hair Down: Those Long, Artificial Tresses May Be Popular and Easy, But They May Also Have Health-Related Drawbacks, BALT. SUN, June 3, 2007, at 9U.
375. One author proclaimed the following about the freedom that her braids gave her: "It's a wash-andwear thing. I don't have to comb it every day, and I can swim, shower, and get caught in the rain without worrying about it.
376. Talk about liberation!" Andrea Benton Rushing, Hair-Raising, 14 FEMINIST STUD. 325, 325 (1988).
377. The impact of race on hair and liberation affects other women of color, too. For example, some Asian Pacific American women, who tend to have incredibly straight hair, perm their hair-meaning curl it-to look less Asian. In discussing the restraints that her perm placed on her, one Asian Pacific American women stated that "[b]ecause her hair straightens out when it gets wet she always carries an umbrella, never swims with friends, and dries her hair after showering before letting anyone see her."
378. Weitz, supra note 11, at 676.
379. Hull, supra note 68 (including one black hairdresser's comment that "[g]oing natural isn't necessarily less expensive than having a relaxer, especially in the early stages").
380. Caldwell, supra note 10, at 369 (noting that one reason why black women choose natural hairstyles such as braids is "concern for the health of [their] hair, which many [black women] risk losing permanently after years of chemical straighteners").
381. Hull, supra note 68 (relating the dangers that relaxers present in terms of dryness and breakage);
382. Straight Talk, supra note 176 ("Relaxers, peroxide, hot combs, flat irons and even blowdryers can leave hair brittle and prone to break.").
383. See BONNER, supra note 65, at 18.
384. See id.
385. See id.
386. Hull, supra note 68.
387. Krissah Thompson, A Gentler Way to Relax Hair: Women Push for Products that Are Less Caustic, WASH. POST, Jan. 6, 2009, at Fl, F4;
388. see also Caldwell, supra note 10, at 369 (pointing out that some black women may choose natural hairstyles such as braids because they "fear that the entry of chemical toxins into [their] bloodstreams through [their] scalps will damage [their] unborn or breastfeeding children").
389. Indeed, in his autobiography, Malcolm X told a vivid story about burning his scalp as he attempted to "conk" or straighten his curly locks. He wrote:
390. The congolene [the straightening chemicals] just felt warm when Shorty started combing it in. But then my head caught fire.
391. I gritted my teeth and tried to pull the sides of the kitchen table together. The comb felt as if it was raking my skin off.
392. My eyes watered, my nose was running. I couldn't stand it any longer, I bolted to the washbasin.
393. MALCOLM X, THE AUTOBIOGRAPHY OF MALCOLM X: AS TOLD TO ALEX HALEY 54 (1964).
394. Thompson, supra note 189, at F4.
395. Francie Latour, Welcome to the Dollhouse: The Line the New Black Barbies Won't Cross, BOSTON GLOBE, Oct 25, 2009, at K3. The journalist also explained that the new line of black Barbies, designed to look more like black girls, have straightened hair and come with their own relaxing kit. Id.
396. Thompson, supra note 189, at F1.
397. Caldwell, supra note 10, at 369. Concerns about the health effects of relaxers even prompted researchers, to examine their potential relationship between breast cancer and its higher incidence of occurrence in black women under the age of forty-five, even though they ultimately found no link between the two.
398. Thompson, supra note 189, at F4.
399. See Hull, supra note 68 (describing how a black woman's hair grew back stronger and longer when she stopped getting perms).
400. Thompson, supra note 189, at F1.
401. Id.
402. Straight Talk, supra note 176.
403. Id.
404. See Press Release, Wake Forest Univ. Baptist Med. Ctr., Dermatologic Barriers to Exercise in Black Women (Jan. 3, 2008);
405. see also Julie Zeveloff, Hair over Health: For Many Black Women, Style Trumps Exercise, COLUM. NEWS SERV., Apr. 1. 2008, available at http://jscms.jm.columbia.edu/cns/2008-04-01/zeveloff-obesity.html.
406. Wake Forest Univ. Baptist Med. Ctr., supra note 199.
407. Monae Everett, How To Maintain Your Hair During Exercise for African American Women, EHOW, http://www.ehow.com/how-5177077-maintain-exercise-african- american-women.html (last visited Jan. 27, 2010).
408. Wake Forest Univ. Baptist Med. Ctr., supra note 199.
409. Id.
410. Rogers v. Am. Airlines, 527 F. Supp. 229, 233 (S.D.N.Y 1981).
411. White, supra note 181.
412. BYRD & THARPS, supra note 112, at 177.
413. GOOD HAIR (HBO Films 2009);
414. see also Catherine Saint Louis, Black Hair, Still Tangled in Politics, N. Y. TIMES, Aug. 27, 2009, at E1; Dr. Susan Taylor's Brownskin.net http://Brownskin.net/ hairweaves.html (last visited Nov. 18, 2009).
415. GOOD HAIR, supra note 207.
416. Caldwell, supra note 10, at 369 ("Some of us choose the positive expression of ethnic pride not only for ourselves, but also for our children, many of whom learn, despite all of our teachings to the contrary, to reject association with black people and black culture in search of a keener nose or bluer eye."); see also Green, supra note 34, at 655-56 (describing how employers mask their discrimination by claiming that employees don't "fit" in the work environment); Weitz, supra note 11, at 679 (acknowledging an "ideology that defines minority women's appearances as inferior and that encourages minority women to engage in time-consuming and painful disciplines to conform to dominant appearance norms").
417. Caldwell, supra note 10, at 365; see also Yoshino, supra note 139, at 894.
418. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971);
419. Jennifer L. Peresie, Toward a Coherent Test for Disparate Impact Discrimination, 84 IND. L.J. 773, 777 (2009).
420. Peresie, supra note 211.
421. Id. at 776.
422. The four-fifths rule provides: A selection rate for any race, sex, or ethnic group which is less than four-fifths (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact. 29 C.F.R. § 1607.4(D) (2009);
423. see also Isabel v. City of Memphis, 404 F.3d 404, 409 (6th Cir. 2005).
424. Peresie, supra note 211, at 774.
425. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 (1988);
426. see also Peresie, supra note 211.
427. Watson, 487 U.S. at 995 (citing Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971));
428. see also 42 U.S.C. § 2000e-2(k)(1)(A) (2006). Discrimination occurs when an employer "uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity ...." § 2000e-2(k)(1)(A)(I).
429. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975);
430. see also Peresie, supra note 211.
431. Watson, 487 U.S. at 988.
432. Johnson v. U.S. Dep't of Health and Human Servs., 30 F.3d 45, 48 (6th Cir. 1994);
433. see also Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 HARV. L. REV. 494, 518 (2003) (noting a tension in disparate impact law where one side sees disparate impact as an "evidentiary dragnet designed to discover hidden instances of intentional discrimination," and the other side views the doctrine as a "more aggressive attempt to dismantle racial hierarchies").
434. See Hazelwood Sch. Dist v. United States, 433 U.S. 299, 308 (1977). "Most often, plaintiffs present statistics from the actual applicant pool for the position." Peresie, supra note 211, at 778;
435. see, e.g., Waisome v. Port Auth., 948 F.2d 1370, 1372 (2d Cir. 1991). Plaintiffs might also choose to use national population statistics,
436. see, e.g., Dothard v. Rawlinson, 433 U.S. 321, 329-30 (1977), state data, as in Griggs,
437. see, e.g., 401 U.S. at 430 n.6, or data from a smaller geographic area,
438. see, e.g., EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1277 (11th Cir. 2000).
439. Approximately two-thirds of all black women relax their hair. BYRD & THARPS, supra note 112, at 177.
440. This fact-the decision by the employer to enforce or create a strict grooming code-is borrowed from the Jespersen case.
441. See Jespersen v. Harrah's Operating Co., 444 F.3d 1104, 1107 (9th Cir. 2006) (en banc);
442. Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1077-1078 (9th Cir. 2004).
443. The same analysis would apply if one were looking more broadly outside of one particular workplace. Similar percentages of black women would be affected whether by town, city, county, or state. Professor Elaine Shoben highlights that some disparate impact cases have been proven entirely without regard to statistics.
444. See Sullivan, supra note 34, at 989 n.326 (citing Elaine W. Shoben, Disparate Impact Theory in Employment Discrimination: What's Griggs Still Good For? What Not?, 42 BRANDEIS L.J. 597, 606 (2004)).
445. For example, Shoben cites Garcia v. Woman's Hospital of Texas, 97 F.3d 810, 814 (5th Cir. 1996),
446. where the Fifth Circuit held that accepting the testimony of its plaintiff's proposed expert witness "that no pregnant woman would be advised by her doctor to lift 150 pounds ... would have been sufficient to establish causation between the hospital's lifting requirement and the disparate impact." Id; cf. Flagg, supra note 138, at 2040 (suggesting that one can identify facially neutral criteria as having "foreseeable disparate effects" where the criteria are "associated with whites to a greater extent than with nonwhites"). A black female's disparate impact claim based upon a grooming ban of braids, locks, and twists is arguably such a case.
447. See, e.g., Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1181 (7th Cir. 1982) (rejecting customer preference as a justification for discrimination against a black woman);
448. EEOC v. St. Anne's Hosp. of Chi., 664 F.2d 128, 133 (7th Cir. 1981) (holding that race discrimination is not justified by customer preference).
449. One black female journalist exclaimed, "But imagine what's [sic] like to grow up in a culture where you are never, ever supposed to wear your hair in its natural state." Leslie Gray Streeter, How Some Other Black Women 'Got Their Groove Back,' PALMBEACHPOST.COM Aug. 14, 2008, http://www.palmbeachpost.com/accent/content/accent/epaper/2008/08/13/ ale-stellagrcove-web-0814.html.
450. Caldwell, supra note 10, at 390; see also Bellinger, supra note 144, at 65 ("Straight hair is still. the North American norm and is often needed to secure employment for African American women.").
451. Tanya Kersey, Judge Mablean To Leave "Divorce Court";
452. Money and Hair Issues Were the Real Reasons for Her Departure, BLACKTALENTNEWS.COM Apr. 10, 2006, http://www.blacktalenteews. com/cgi-bin/artman/exec/view.cgi?archive=3&num=561;
453. E-mail from Christine Jones, Associate Professor of Law, University of the District of Columbia David A. Clarke School of Law, to author (June 14, 2006, 14: 42:00 CST) (on file with author) (forwarding e-mail from the judge).
454. Kersey, supra note 228.
455. Id. (internal quotation marks omitted).
456. Id.
457. Id.
458. E-mail from Christine Jones, supra note 228.
459. Devon Carbado, Catherine Fisk, & Mitu Gulati, After Inclusion, A ANN. REV. L. & SOC. SCI. 83, 83 (2008)
460. (describing the forms of workplace discrimination that can occur after a person is hired and noting that such discrimination "include[s] a range of subtle institutional practices and interpersonal dynamics that create systemic advantages for some employees and disadvantages for others").
461. See generally Angela Onwuachi-Willig, Volunteer Discrimination, 40 U.C. DAVIS L. REV. 1895 (2007)
462. (highlighting the immense pressures that Blacks generally have to perform their identity in racially palatable ways). Covering is defined as downplaying identity, and reverse covering is defined as behaving in a way that purposely conforms to stereotype.
463. See Yoshino, supra note 139, at 837, 902; see also Carbado & Gulati, supra note 139, at 1262 (describing how women and people of color attempt to alter their identities in order to prevent discrimination and preempt stereotyping in the workplace). Their claim is that "the social meaning of, for example, a black person's racial identity is a function of the way in which that person performs (presents) her blackness" such that Blacks can choose to accept or reject societal expectations of behaving " conventionally"-that is, in accordance with predominant stereotypes.
464. Devon W Carbado & Mitu Gulati, The Law and Economics of Critical Race Theory, 112 YALE L.J. 1757, 1771-1772 (2003)
465. (reviewing FRANCISCO VALDES, ET AL., CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY (2002)).
466. See Green, supra note 34, at 655-56; see also Flagg, supra note 138, at 2009-2029.
467. Padgett supra note 33.
468. See 188 F.3d 652, 656 (6th Cir. 1999); see also Padgett, supra note 33 ("As long as 'hair is neat and put together, there is no natural hair texture that is inappropriate for corporate America "...." but "'[c]orporate America is still conservative and demands a certain look[.]'").
469. Hollins, 188 F.3d at 656-657
470. Id. at 655.
471. Id. Finger waves involve "a method of setting hair by dampening with water or wave solution and forming waves or curls with the fingers and a comb." Merriam-Webster OnLine, http:// www.meniam-webster.com/dictionary/ finger+wave (last visited Mar. 9, 2010).
472. Hollins, 188 F.3d at 655.
473. Id. at 656.
474. Id.
475. Id. at 656-657
476. Id. (emphasis added).
477. Id. at 662-663
478. Id. at 660-661
479. -604 F.2d 1028, 1029 (7th Cir. 1979).
480. Id. at 1033 (footnote omitted).
481. Id.
482. Id. at 1033 & n. 17.
483. A Jheri curl is created by a chemical process that gives black people's hair a glossy, loosely curled look. It requires curl activator to stay moist and loosely curled. The most famous person to wear a Jheri curl likely was the late Michael Jackson during the mid-1980s.
484. INDIA ARTE, I Am Not My Hair feat. Akon, on TESTIMONY: VOLUME 1, LIFE & RELATIONSHIP (Motown 2006).
485. In describing her transitions in hair, Arie wrote: Little girl with a press and curl Age eight I got a Jheri curl Thirteen then I got a relaxer I was a source of so much laughter Fifteen when it all broke off Eighteen when I went all natural.... '97 dreadlocks all gone Id. In describing job difficulties with natural hairstyles, Akon, with whom Arie performed the song,
486. wrote: Then I hit by the barber shop (real quick) Had the mini little (twist) and it drove them crazy (drove 'em crazy) And then I couldn't get (no job) Cause corporate wasn't hiring (no dreadlocks) (oh no) ... Hate to say it but it (seems so flaw) Success didn't come 'til I (cut it all off) (uh huh)
487. Id.
488. Id.
489. See supra notes 112-17
490. and accompanying text; supra Part II.B (describing cases where an Afro style is acknowledged as a racial characteristic).
491. See 4 Fair Empl. Prac. Cas. (BNA) 18 (June 10, 1971);
492. see also Jenkins v. Blue Cross Mut Hosp. Ins., 538 F.2d 164, 168 (7th Cir. 1976).
493. -4 Fair Empl. Prac. Cas. (BNA) 18 (June 10, 1971). The court also noted that "the wearing of an Afro-American hair style by a Negro has been so appropriated as a cultural symbol by members of the Negro race as to make its suppression either an automatic badge of racial prejudice or a necessary abridgement of [F]irst [A]mendment rights."
494. Id.
495. Kimberly A. Yuracko, Trait Discrimination as Race Discrimination: An Argument About Assimilation, 74 GEO. WASH. L. REV. 365, 409-10 (2006) ("[I]t is inappropriate and potentially stigmatic to give society's predominantly white managers, supervisors, and customers unfettered discretion to define socially desirable behavior, grooming, and appearance standards.").
496. Ethnic Hair Care Focuses on Organic, DRUG STORE NEWS, Sept. 10, 2007, at 74, 74
497. (quoting MINTEL INT'L GROUP, BLACK HATRCARE - US (2007)), available at http://findarticles.com/p/articles/mi-m3374/is-11-29/ai-n21053109/ ("A continued trend toward more natural styles and demand for less damage to hair through chemical processing have resulted in lower sales in relaxers even as demand for moisturizing and styling products used to maintain unrelaxed hair grows.");
498. David France, The Dreadlock Deadlock NEWSWEEK, Sept 10, 2001, at 54, 54 ("[T]oday dreadlocks, twists or braids are at the height of fashion, nearly as common as Afros were 30 years ago."); Hull supra note 68 (referring to one black hairdresser's comment that "[t]hree years ago, most of her clients sought perms" but "now ... the numbers are reversed, and she applies three or four perms a week out of 30 styles").